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What this judgment is not

Once in a while, I come across a line in a judgment that makes me pull up sharply. Whilst my eyes rove over the screen full of Brussels II and run of the mill sets of care proceedings, every now and then you find a diamond in a sea of coal.
This is one of those.

18.What this judgment is not – Although I realise it may seem somewhat odd to include a paragraph under that heading I consider that it is necessary to do so.

Okay, you had me at hello.

This is a judgment by His Honour Judge Wildblood QC

Re ABC (A child) 2017
http://www.bailii.org/ew/cases/EWFC/OJ/2017/B75.html

So, what is this judgment not?
Therefore this judgment is not:

i) A determination by me of the merit of the grandmother’s complaints. The Local Authority, in its submissions, stresses that point whilst, at the same time, having made submissions and filed evidence to suggest that the complaints are not valid (see the submission and the social worker’s statement that were filed for 20th October 2017). I also note that, in the case of re B [2004] EWHC 411 (Fam) the now President, Sir James Munby was in a not dissimilar position (see para 49 of the judgment). As I stressed on 20th October 2017, the issue is not whether the grandmother’s complaints are correct for I am not in a position to decide that. The question is whether the grandmother should have the right to tell her story and now, whether as part of the telling of it, the Local Authority should be named.

ii) A means of stimulating public debate. My job as a Circuit Judge is to apply the law to the facts that are relevant to the issue before me. I have read the whole of the judgment in very recent case of Re B [2017] EWCA Civ 1579 and note, in particular, what is said in paragraph 27.

iii) An attempt by me at setting any sort of precedent or guidance even on a local scale. Not only would general guidance be way beyond my station or pay-grade. It would also be presumptuous and wrong. There is no new point of law or principle that arises in this case and my decision is entirely case specific. The decision that I have to make requires a very careful judgment call. As the President himself said in A v Ward [2010] EWHC 16 (Fam): ‘The present dispute is only part of an on-going debate as to where in the family justice system the lines should be drawn, where the balance should be struck, as between the often starkly opposed arguments, on the one side in favour of preserving the traditional privacy and confidentiality of family proceedings and on the other side in favour of greater ‘transparency’, to use the vogue expression. My duty here is to determine the present case according to law – that is, the law as it is, not the law as some might wish it to be’.

iv) An attempt by me to push or contain the boundaries of transparency. Not only do I have no interest in doing that but it is not for me to do.

Flipping that question round, it appears that what the judgment IS is a decision about whether a grandmother in care proceedings who put herself forward as a carer should be allowed to publish her complaint about her allegations of mistreatment by the Local Authority AND subsequently whether the Local Authority should be named.

2.At a hearing on the 6th October 2017 I made a special guardianship order in favour of a grandmother in relation to her grandchild. At that hearing she expressed profound dissatisfaction about the way in which she had been assessed and treated by the Local Authority during the currency of the proceedings. The parents each supported the grandmother in what she said. The guardian had filed a report supporting some of the points that the grandmother raised also. The Local Authority did not agree with what the grandmother said.

3.The grandmother, who is a litigant in person, stated that she wished to make her story known to others. I explained to her the availability of the complaints procedure under Section 26(3) of The Children Act 1989 but explored with her whether she was seeking to publish an anonymised account of the statement that she read out in court that day. She told (the Court) that she was.

So the complaint, if allowed to be published, must be read in the context that the Court have not resolved one way or the other whether it is a justified complaint. The Court have not had to rule on whether she is right or wrong. The Court did place the child with her, and made a Special Guardianship Order, but did not give a judgment about her specific complaints.

The Judge did rule that the Local Authority in question were wrong in their analysis of the legal position. It’s quite common for Local Authorities to operate under the same misconception (in fact, if you don’t actually have the authorities in front of you to analyse, I’d say that conservatively 95% of Local Authority lawyers (including myself from time to time) would have fallen into exactly the same trap. It is one of those areas where what we all think the law is does not equate with what the law actually is.

19.The law that applies – As the Local Authority submission suggests, the answer to the issues before me do not lie in statute. Although there are statutory restrictions on the publication of information from family proceedings heard in private (e.g. in section 12 of the Administration of Justice Act 1960 and section 97 of The Children Act 1989) those restrictions are, in any event, subject to any specific leave given by the court in a particular case. The same applies to the resultant restrictions that arise under Chapter 7 of Part 12 of Family Procedure Rules 2010 and PD 12G of those rules.

20.Where proceedings have come to an end Section 97 (2) of the 1989 Act does not operate and Section 12 of the 1960 Act does not operate to prevent disclosure of the names of parties to proceedings held in private. In the case of Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2FLR 142 (which I cite below) there is an analysis of just this very point but I do wish to cite paragraph 24 of the decision of the President, as he now is, in A v Ward [2010] EWHC 16 (Fam) immediately:

‘It is convenient to start with what I said in British Broadcasting Corporation v Cafcass Legal and others [2007] EWHC 616 (Fam), [2007] 2 FLR 765, at para [12]: “It was – correctly – common ground between counsel that: (i) The care proceedings in relation to William having come to an end, the restrictions imposed by s 97(2) of the Children Act 1989 no longer operate: Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, [2007] 1 FLR 11. (ii) The only relevant statutory restrictions are those imposed by s 12 of the Administration of Justice Act 1960. (iii) Section 12, although it … imposes restrictions upon discussion of the facts and evidence in the case, does not prevent publication of the names of the parties, the child or the witnesses: Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142. (iv) Accordingly, unless I agree to exercise the ‘disclosure jurisdiction’ (see Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, at [84]) [nothing] … (to the extent that it contains … material the disclosure of which would otherwise constitute a breach of s 12 of the Administration of Justice Act 1960) can be published, and unless I decide to exercise the ‘restraint jurisdiction’ there will be nothing to prevent the public identification of the social workers, the police officer, the treating doctors and the expert witnesses.” [25]. No-one dissents from what I went on to say (at para [13]) namely that: “both the disclosure jurisdiction and the restraint jurisdiction have to be exercised in accordance with the principles explained by Lord Steyn in In Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, sub nom Re S (Identification: Restrictions on Publication) [2005] 1 FLR 591, at [17], and by Sir Mark Potter P in A Local Authority v W, L, W, T and R (by the Children’s Guardian) [2005] EWHC 1564 (Fam), [2006] 1 FLR 1, at para [53], that is, by a ‘parallel analysis’ of those of the various rights protected by the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the Convention), which are engaged, leading to an ‘ultimate balancing test’ reflecting the Convention principle of proportionality’.
21.I cite that passage (and more, later, from Re B) because the Local Authority’s submission appears to me to be advanced on a fundamental misunderstanding of the law as it applies to the naming of the Local Authority. The Local Authority submitted, on that and the other issues, that ‘these proceedings were brought under The Children Act 1989 and were heard in private. Publication of information relating to the proceedings, unless specifically authorised by a court, is a contempt of court’. The whole of the submission that was written by the Local Authority appears to be based on that erroneous contention and, further, makes no mention of the point that arises from the above passage from A v Ward and the passages that I cite below from Re B and other cases. As was the case in Re B, the boot has been put on the wrong foot by the Local Authority.

And therefore there was no reason why the grandmother could not share her story. The sole issue for litigation was whether she should be prevented from naming the Local Authority concerned.
Why in general should local authorities be named in judgments? The press made the following representations


29.I also find it very helpful that the officers of the press have made the following submission: ‘The case of B: X Council v B is also relevant – see http://www.familylawweek.co.uk/site.aspx?i=ed866 In that case [at para 14 onwards] Mr Justice Munby said as follows:

14 “There will, of course, be cases where a local authority is not identified, even where it has been the subject of stringent judicial criticism. A recent example is Re X (Emergency Protection Orders) [2006] EWHC 510 (Fam), [2006] 2 FLR 701. But current practice shows that local authorities involved in care cases are increasingly being identified. In addition to the two cases I have already referred to, other recent examples can be found in British Broadcasting Company v Rochdale Metropolitan Borough Council and X and Y [2005] EWHC 2862 (Fam), [2007] 1 FLR 101, Re Webster, Norfolk County Council v Webster and others [2006] EWHC 2733 (Fam), [2007] 1 FLR 1146, Oldham MBC v GW, PW and KPW (A Child) [2007] EWHC 136 (Fam) and Re Ward, British Broadcasting Corporation v Cafcass Legal and others [2007] EWHC 616 (Fam). No doubt there are others.

15. I propose to adopt the same approach here as that which I set out in Re B. Is there some proper basis for continuing the local authority’s anonymity? In my judgment there is not.

16. In the first place, as the local authority very frankly accepts, whatever anonymity it enjoys is somewhat precarious, given the fact that the solicitors in the case have all been publicly identified. More importantly, however, I cannot see that there is any need to preserve the local authority’s anonymity in order to protect the children’s privacy and identities. Disclosure of the name of the local authority is not of itself going to lead to the identification of the children. In this respect the case is no different from Re B and Re X.
17. The real reason why the local authority seeks to perpetuate its anonymity is more to do with the interests of the local authority itself (and, no doubt, the important interests of its employees) than with the interests of the children. That is not a criticism of the local authority’s stance. It is simply a statement of the realities.

18. I can understand the local authority’s concern that if anonymity is lifted the local authority (or its employees) may be exposed to ill-informed criticism based, it may be, on misunderstanding or misrepresentation of the facts. But if such criticism exceeds what is lawful there are other remedies available to the local authority. The fear of such criticism, however justified that fear may be, and however unjustified the criticism, is not of itself a justification for affording a local authority anonymity. On the contrary, the powers exercisable by local authorities under Parts IV and V of the Children Act 1989 are potentially so drastic in their possible consequences that there is a powerful public interest in those who exercise such powers being publicly identified so that they can be held publicly accountable. The arguments in favour of publicity – in favour of openness, public scrutiny and public accountability – are particularly compelling in the context of public law care proceedings: see Re X, Barnet LBC v Y and X [2006] 2 FLR 998 at para [166].

19. Moreover, and as Lord Steyn pointed out in R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115 at page 126, freedom of expression is instrumentally important inasmuch as it “facilitates the exposure of errors in the governance and administration of justice of the country.” How can such errors be exposed, how can public authorities be held accountable, if allowed to shelter behind a judicially sanctioned anonymity? This is particularly so where, as in the present case, a public authority has been exposed to criticism. I accept, as the local authority correctly points out, that many – indeed most – of the matters in dispute in this case were never the subject of any final judicial determination, but the fact remains that in certain respects I was, as my judgment shows, critical of the local authority. And that is a factor which must weigh significantly in the balance: see Re X, Barnet LBC v Y and X [2006] 2 FLR 998 at para [174].

20. In my judgment the balance here comes down clearly in favour of the local authority being identified.”
30.Further, they submit as follows: ‘As recognised in section 20 of the President’s Practice Guidance of January 2014 – Publication of Judgments, where a judge gives permission for a judgment to be published the public authority should be named in the judgment unless there are compelling reasons why they should not be so named. We would therefore wish to make the point that in published family judgments, it is highly unusual for a council not to be named’.

31.Finally, there are many other points of assistance from the decision of A v Ward [ibid] but I would wish to make mention of the following:

i) Professionals who give evidence, including social workers, cannot assume that they will do so under a cloak of confidentiality. There are very obvious reasons why that is so. Balcombe LJ said in Re Manda [1993] Fam 183 at p195: “if social workers and others in a like position believe that the evidence they give in child proceedings will in all circumstances remain confidential, then the sooner they are disabused of that belief, the better.”

ii) Proceedings where there are suggestions that a child might be adopted (as there were here) raise issues of exceptional gravity which are of great public interest and concern. ‘It must never be forgotten that, with the state’s abandonment of the right to impose capital sentences, orders of the kind which judges of this Division are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make. It is a terrible thing to say to any parent – particularly, perhaps, to a mother – that he or she is to lose their child for ever’ – see Re L (Care: Assessment: Fair Trial) [2002] EWHC 1379 (Fam), [2002] 2 FLR 730, at para [150].

iii) In Para 133 of the judgment, the President said this: ‘the law has to have regard to current realities and one of those realities, unhappily, is a decreasing confidence in some quarters in the family justice system – something which although it is often linked to strident complaints about so-called ‘secret justice’ is too much of the time based upon ignorance, misunderstanding, misrepresentation or worse. The maintenance of public confidence in the judicial system is central to the values which underlie both Article 6 and Article 10 and something which, in my judgment, has to be brought into account as a very weighty factor in any application of the balancing exercise. And where the lack of public confidence is caused even if only in part by misunderstanding or, on occasions, the peddling of falsehoods, then there is surely a resonance, even for the family justice system, in what Brandeis J said so many years ago. I have in mind, of course, not merely what he said in Whitney v California (1927) 274 US 357 at page 77: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” I have in mind also his extra-judicial observation that, and I paraphrase, the remedy for such ills is not the enforced silence of judicially conferred anonymity but rather the disinfectant power of exposure to forensic sunlight.

In the particular case, the arguments against naming the LA were as follows:-

The principal arguments that have been advanced are these:

i) Naming the Local Authority will increase the risk of the family being identified. The guardian, without analysing the point at all in any of the submissions, relies on this point. The Local Authority relies on it heavily. On behalf of the guardian it is submitted: ‘The Guardian’s view on balance is that disclosure of the identity of the local authority in this case will increase the risk of so called “jigsaw identification” of the child and its family’. She does not evaluate the risk. Nor does the Local Authority.

ii) The grandmother has a right of complaint under section 26(3) of the 1989 Act. The guardian submits: ‘The Guardian questions the motivation and proportionality of naming the local authority in this case. The grandmother of course has an avenue to complain about specific issues through the complaints procedure under S.26 of the Children Act 1989. She feels that the issue of assessment of Special Guardian’s is an issue of national public interest and that there is a need to open up the dialogue regarding assessment of kinship carers generally in respect of transparency, support and preparation through the assessment process. It is not an issue confined to this local authority’.

iii) On the facts of the case, one of the family members involved, it is said, is unlikely to be able to understand the need for confidentiality and would be likely to respond indiscreetly to press enquiry.

iv) A refusal to allow the Local Authority to be named is a ‘minor interference with Article 10 rights and is consistent with existing legislation’.

v) Disclosure of the identity of the Local Authority would lead to the Local Authority having to issue a response and that, in turn, would lead to ‘an unseemly and unhelpful trial by media’ and an ‘increased risk of jigsaw identification of the child’.

vi) Adverse publicity when no findings have been made against the Local Authority ‘would run the risk of making retention and recruitment of social workers more difficult and, therefore, of damaging the service provided for children in the area’. Although I was not referred to it, I do bear in mind what is said by McFarlane LJ in Re W [2016] EWCA Civ 1140 at paragraph 88 and onwards.

vii) The points of principle of public importance are those that the grandmother wishes to raise in relation to how family members are treated when they seek to care for family children in care proceedings. The naming of the Local Authority is not necessary for those issues to be aired.

And the arguments deployed in favour OF naming the Local Authority


The main arguments advanced are:

i) Those that arise from the authorities that I set out above. I will not repeat them. Within the submissions of the press was this: ‘The clear starting point is that a public body can have no expectation of anonymity in any reports that are permitted unless there is some justification for departure from the default position – it is for the Local Authority to make out a case, not for a journalist to establish a positive public interest in identifying the LA. Local Authorities are routinely identified in judgments’.

ii) The arguments about the suggested risk of jigsaw identification are advanced without analysis of fact or research. The reality is that, in the immediate locality of the grandmother, it will be easy for those who know the family to identify it even on the basis of the anonymised statement; the identification of the Local Authority will add nothing to that. The further reality is that, amongst the grandmother’s close friends and family, her story will already be apparent. For others, living in other areas of the Local Authority (e.g. the north of the Local Authority area) the naming of the Local Authority will not help at all in identifying the family. On a national level, naming the Local Authority area will be a matter of no significance at all to people from other areas (e.g. Birmingham or Newcastle-on-Tyne) and could not be taken as identifying the family. Given the demography, geography and population of the Local Authority identification is unlikely to take place beyond those who are likely already to know the family’s identity. I note this submission of the Press officers (which shows the extent of their researches in my opinion): ‘The fact the infant will be in the care of its grandmother is also not significant enough to identify this family. Such an arrangement is neither unusual, nor unexpected in this country. The 2011 census puts the number of children in England being cared for by a family member at 153,000, and of those, around 76,000 are being looked after by a grandparent (https://www.grandparentsplus.org.uk/kinship-care-state-of-the-nation-2016). In 2017, it was reported in Community Care magazine that since 2010 there had been a 220% rise in special guardianship orders (http://www.communitycare.co.uk/2017/04/27/special-guardianship-orders-used-safely/). It is, we suggest, safe to assume that a good proportion of those being appointed as special guardians are grandparents’.

iii) The difficulty that the member of the family may have in dealing with the issues discreetly will arise whether the Local Authority is named or not. Naming the Local Authority does not increase or decrease the risk that the family member will be identified within the local community.

iv) It is utterly wrong in fact and principle to say that the non-disclosure order sought is only a minor interference with the grandmother’s Article 10 rights. The Local Authority’s approach seems to be based on its misunderstanding of the principles of law (i.e., in Re B language, on which foot the boot is) and also its failure to consider any of the relevant decisions of the President that I have set out above. To say to this grandmother that she was not allowed to name the Local Authority involved would be a very major interference with her right to expression under the Convention.

v) Insofar as there is a risk of identification, that risk is outbalanced by the importance of the freedom of expression enshrined by Article 10 (1). Further, the grandmother (who will be caring for the child and is an intelligent woman) and the mother both support that identification. I consider that their submissions about the Article 8 rights of their own family carry significant weight.

vi) There is a real and genuine interest within the local community in knowing how its Local Authority is acting. That is part of the democratic process. Members of a local community, like this grandmother, should be able to raise their complaints and concerns about local institutions.

vii) It would be quite wrong to try to limit the grandmother to the use of the procedure under Section 26(3) of the 1989 Act or any other complaints procedure. It is for the Local Authority to justify non-disclosure of its name and it is not for the Local Authority to dictate the means by which the grandmother exercises her Article 10 rights. By way of example – could it really be said in the Crown Court that someone who wished to complain about the treatment she had received in a prosecution must exhaust the police complaints procedure first?

viii) The suggestion that naming the Local Authority will result in a trial by media is riddled with errors of principle and fact. First, the press are the eyes and ears of society and press reporting cannot be swept aside on the basis of trial by media. Second, the emotive term ‘trial by media’ is not apposite – the issue is whether a member of the public should be able to voice a complaint against a local and public institution. Third, the extent to which there is a dispute within the public domain will depend on how the Local Authority chooses to conduct any response within the ambit of the law. Fourth, even without naming the Local Authority, it is highly foreseeable that some form of response will be made by the Local Authority and any response that is given should not be conducted by it behind a veil of anonymity.

ix) The court must not be seen to act as a shield for other public institutions.

x) There is no attempt by anyone involved in this case to identify specific social workers in the material that is made public. Naming the Local Authority does not mean that it becomes necessary to name the individual social worker and I have had no requests or suggestions that this should occur.

xi) The issues of importance are not confined to those relating to the treatment of family members in care proceedings. The issues that arise will be of most interest to those who live in the locality of this Local Authority and relate to how the authority is performing. Local issues matter (see the passage in from Re S above).

The Court felt that the case for naming the Local Authority was overwhelming (and having allowed a brief period to allow them to consider whether to appeal) and therefore named them.

36.Opinion on naming the Local Authority – In my opinion the arguments in favour of naming the Local Authority are overwhelming. I do not think that the Local Authority has got anywhere near justifying the non-disclosure of its identity. I accept each of the arguments advanced in support of that disclosure in the terms that I have set out above and consider that the authorities that I have cited point very strongly to it being ordered. I depart from the views of the guardian and of the Local Authority for the reasons stated within the accepted arguments that I have set out above in favour of disclosure. I do not think that the Local Authority or the guardian has given the issues or principles covered by this judgment sufficient or correct analysis.

The grandmother’s statement is appended to the judgment – again, the caveat is that these are the things that she wished to say about how she felt she was treated, and they are not a set of judicial findings.

Contextual statement as drafted by the parties

This statement is written by a capable and educated grandmother who has successfully raised her own family as a single parent and recently put herself forward to be assessed as a Special Guardian for her infant grandchild. The circumstances were such that it was not going to be possible for the parents to care for the baby and the alternative would have been an adoptive placement.

It can be seen that she felt unsupported through the assessment and that it was a difficult and protracted process. While rigorous assessment is of course important in the process of considering family members as prospective special guardians, what this grandmother writes raises important questions about whether there needs to be a re-evaluation by local authorities nationally of how family members putting themselves forward in these situations can be better prepared, informed and supported through the process.

The grandmother’s statement

These are the facts that I would like to disclose to the press, concerning my experiences during the assessments for a Special Guardianship Application and the events that have followed.

This has been an extraordinary experience to me, even though in the course of my life I have previously had to face some remarkably difficult challenges .It is important to me that some good should come from what has happened in this case, to this baby, her parents and to me.

It has seemed that the local authority is unused to being questioned or called to account for their conduct, decisions or even their misinformation. Emails are frequently not acknowledged, questions not answered most of the time. When false information or advice is given it leads to a great deal of anxiety and sometimes extra costs. This has happened throughout this process. Yet no one takes responsibility for their actions. It struck me that social workers are unused to the clients they work with demanding to be treated with respect, honesty and efficiency. There is a reliance on procedure without examining the particulars of a situation.

The reasoning which led to the local authority initial decision to contradict their very positive first report about me was a very narrow interpretation of my character and behaviour. It seemed there was only one way to show commitment and as I had expressed it a different way I was not committed. It was put to me that I had failed because I had not wanted to take the baby straight home from hospital. That I ought to be expressing that I wanted her. I reason that this is a vast decision for anyone to make, and that to respond purely emotionally or instinctively would be a less appropriate way to decide. I have been very open about my deliberations and judged negatively for that. Instead of helping to explore and understand, pejorative notes were taken and not discussed with me to further understand. I was even required to sort out all the typo errors in the first report which is most unprofessional.

I have responded robustly to the addendum report. I would add, however, that I was shocked by the references to identity and attachment, which do not bear examination. Indeed, I felt obliged to explain the meaning of a smile in small babies to the independent social worker such was the degree of her misunderstanding of this. As a final flourish, it was put to me by her that I ought to express commitment in the absence of clear health understanding or a financial assessment, which I felt was an outrageous transfer of responsibility from the local authority to me for their failings.

A complex issue which I feel has been inappropriately dealt with is the baby’s health. Both her parents have health difficulties which may complicate her future health. They may also have a huge impact on my capacity to cope in the future. The local authority followed their set routines in this area and failed completely to respond to my concerns that I needed to have as much knowledge as possible. This desire to have information was to guide my decision but also to ensure the best care now for this vulnerable child. Early investigations would have led to greater understanding. For example, a simple blood test could have been informative on one aspect of this. I fail to believe that this is not possible in complex cases.

A financial assessment is an integral part of this process. I have been given numerous accounts of how this works, how no finance would be offered, that I was ineligible even for assessment. I had to use voluntary agencies and research on line for the facts. The first social worker simply failed to turn up for an appointment to assess me. The baby’s social worker took a few notes and didn’t tell me the outcome though indirectly I was informed I was ineligible as I have some savings, which is completely incorrect. Ultimately, after explaining the process to the uncommunicative unit responsible, I have been offered some support. Following further unacknowledged emails to add information to my case, which explained my understanding of the assessment guidelines, further support has been offered. Is this an acceptable way for this to be conducted? It has led me to have to delay giving notice to my employer until I had discussed the outcome with a solicitor, leaving the baby in care for weeks longer.

There have been unexplained delays, which cannot be helpful for a baby awaiting a permanent placement. Weeks would pass without explanation, or even communication. Was this a suitable case for a newly qualified social worker who would move on, to be followed, by a part time person who would be away on leave without informing those concerned?

I have wondered how this would have ended if I had been a less vocal, expressive or determined person. I am under no doubt that this baby may have been adopted, that others may be, because many people who find themselves in this position do not have the personal resources to cope effectively. It has left me utterly exhausted and feeling shattered by the lack of kindness and understanding I experienced in such a painful context. To add insult to injury, I am accused of being problematically subject to stress by the social worker for the baby in her final statement.

I need to put this process behind me. I will, but I would hope that by airing these facts that those concerned might improve their practice. The central cog in this process needs to be well informed, efficient and dare I say kind, in such a sensitive situation. Their actions have cost me around £700 in legal fees which ought not to have been needed. I could have left this court with no financial support if I had not undertaken to investigate independently and share my knowledge with the local authority, to press for adherence to the D of E guidelines.

Ultimately, and above all, this baby has remained far longer than was justifiable, in foster care. Her parents have experienced a protracted agony of uncertainty. And, we go forward without full medical understanding. I would like to pay tribute to the exemplary care of the foster mother who has loved and cared for this baby and to the Guardian for her faith in my integrity.

The Order of Special Guardianship has now been made. I will love and care for this baby in every way. She will enjoy contact with her parents and develop a positive sense of Identity, drawing on the love of her family and our wonderful friends.

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Winding your way down on Baker Street

The Court of Protection, in Aidiniantz v Riley 2015 were dealing with a high level of conflict between family members relating to the affairs of an 88 year old woman who lacked capacity to manage her own finances and other matters as to where she should live.

 

The family had been the creators of the Sherlock Holmes museum in Baker Street, which one imagines does quite well and probably has been doing even better in recent years as both Hollywood, US television and the BBC have each had their very own popular version of the character.

http://www.bailii.org/ew/cases/EWCOP/2015/65.html

 

At the hearing, the Judge, Mr Justice Peter Jackson, found that the press were in attendance. It emerged that the press had been sent a press release about the case – that press release was not a neutral one approved by the Court but a partial, tendentious and sensationalised one.

 

  1. A preliminary point arises about the extent to which the proceedings can be reported. They were heard in private, in accordance with the Rules, at a hearing at which members of the press were in attendance. Two questions now arise: should the press be allowed to report the hearing, and should there be a public judgment naming the parties? Submissions have been made by the parties and by David Barrett and Mario Ledwith, journalists representing the Telegraph Media Group and Associated Newspapers respectively.
  2. It is relevant that on 25 September a media alert was issued by a PR company, notifying members of the media that this hearing would be taking place. The alert is in highly partisan terms, and includes lengthy quotations attributed to Stephen. It was this that brought the journalists to court.
  3. The respondents, having initially denied that they were responsible for the arrival of the press, were then faced with the press alert. They say that it was issued on the instructions of Mr Siddiqi and that the quotes from Stephen are not genuine but were invented by Mr Siddiqi to convey Stephen’s views. They say that they did not know what Mr Siddiqi had done until the hearing was under way.
  4. I have not heard evidence about this aspect of the matter and it is unnecessary to reach a conclusion about it. Mr Siddiqi is described by the respondents as “a long-time friend/associate of the family who has closely followed and advised the family on their affairs.” I am, to say the least, sceptical that he was acting without the knowledge and approval of the respondents, but it makes no difference. Even if Mr Siddiqi did not tell them what he was doing, he knows them well enough to know that he was doing what they wanted. Indeed, Linda made all the points that appear in the media alert when giving evidence.
  5. The relevance of this is that it alerts the court to the risk that the proceedings will be used as a platform to publicise unproven allegations.

 

 

The Press were very candid that their interest in the story was not in the arrangements to be made about Grace Aidiniantz, but in the quarrel that was going on between the family – it was the fight that they were interested in.

 

The Judge had to balance those competing interests – privacy and freedom of the press, our old friends article 8 and article 10 who have been arm-wrestling one another ever since the Human Rights Act was passed.

 

 

In the film "Over the Top", the role of Article 10 is played by Mr Stallone

In the film “Over the Top”, the role of Article 10 is played by Mr Stallone

 

[Hey, if I HAD a google image of Johnny Lee Miller arm-wrestling Benedict Cumberbatch whilst both dressed as Sherlock Holmes, I would have gone with that. I have to work with what I have. Oh, wait…]

 

 

This is them just BEFORE the match. Referee out of picture saying "We want a good clean fight"

This is them just BEFORE the match. Referee out of picture saying “We want a good clean fight”

 

  1. As to the issue of publication of this judgment and the naming of the parties, Mr Tyler QC submits that:

    (1) Real weight should be given to the general rule that the hearing should be in private: Independent News Media Ltd. v A [2009] EWHC 2858.

    (2) There is scant genuine public interest in publication of the current proceedings. The press is avowedly not interested in the issues about Mrs Aidiniantz’s care, but in the family dispute.

    (3) Mrs Aidiniantz’s privacy and dignity should be protected, even though she is incapacitated.

    (4) John has brought these proceedings in good faith, and should not thereby be exposed to vilification by the respondents. His wife and children would also be affected by publicity, as might employees of the family business.

    (5) Litigants generally should not be deterred from approaching the Court of Protection by the fear of consequent publicity.

    (6) Public identification of the parties to this “private family dispute” is unlikely to bring reconciliation closer and is likely to fuel conflict.

  2. The position taken by the journalists is that: (1) This is the latest in a long line of public disagreements between the parties that have been extensively reported in the press, evidenced by news reports from 2013 onwards.

    (2) The disagreement about Mrs Aidiniantz’s health is not in itself of public interest but is the current forum for the ongoing family dispute, which is of public interest, particularly given the family’s business interests.

    (3) Anonymisation of the judgment would make it impossible for the press to report this latest chapter in the very public disagreements between the parties.

    (4) Blanket reporting restrictions are not required to protect Mrs Aidiniantz’s privacy and dignity. There is no intention to report details of her care arrangements or medical condition, beyond saying that she is aged and infirm.

  3. There is in my view good reason for the court to publish its judgment in this case in a form that names the individuals involved:(1) Happily, very few families descend to the level of mutual acrimony that exists in this family. It is in the public interest for the public, if it is interested, to see the consequences. It is in the public interest to know how the court process operates in a recognizable case. It is in the public interest to know what it all costs: in the past year this family has spent £270,000 on this branch of its litigation alone. It is not in the public interest to suppress all that information: on the contrary, knowledge of how one family has behaved may deter another family from behaving likewise.

    (2) In this case, publication of an anonymised judgment would be futile. So much information is already in the public domain that any anonymised judgment would inevitably be linked to the family. The press would be placed in an impossible situation in knowing what it could and could not report.

    (3) It is undesirable that there should be any greater difference of approach than is necessary between two courts dealing with different but related aspects of the same dispute. As recently as 4 June 2015, an extensive public judgment in relation to financial issues was given in the Chancery Division.

    (4) This is not just “a private family dispute”. These parties have repeatedly chosen to air their differences in the courts. There is little likelihood of reconciliation. A public judgment will not make matters any worse for Mrs Aidiniantz than they already are. The parties might even reflect on their future conduct if they know that it may come to public attention.

    (5) Mrs Aidiniantz’s right to privacy and dignity is undoubtedly an important consideration. Even though she herself will not be aware of publicity, her reputation is affected by it being known that she is at the heart of the family discord. However, in the overall circumstances, I do not consider that the publication of this judgment amounts to a significant further intrusion into her privacy. It contains little personal information and makes no criticism of Mrs Aidiniantz: on the contrary, any fair-minded reader would be bound to feel sympathy for an elderly parent in her situation.

  4. The contents of this judgment can therefore be published, but there will be no other reporting of the hearing.

 

 

The Judge sets out all of the background, for those who are interested. He then gives his decision, saying that unusually this is a case where in determining what is in Grace’s interests he can give no weight to the views of the family

 

  1. Discussion
  2. It is not disputed that Mrs Aidiniantz lacks capacity to make decisions about the matters in issue within the meaning of the Mental Capacity Act 2005, and I so find. I also consider that as a result of her circumstances she is a vulnerable person in need of the protection of the court.
    1. It therefore falls to the court to make decisions in Mrs Aidiniantz’s best interests, applying the provisions of s.4 of the Mental Capacity Act 2005. In doing so, it must consider all the relevant circumstances and, in particular, take the following steps:
    • Consider whether it is likely that Mrs Aidiniantz will at some time have capacity in relation to the matter in question.
    • So far as reasonably practicable, permit and encourage her to participate as fully as possible in the decisions affecting her.
    • Consider Mrs Aidiniantz’s past and present wishes and feelings, the beliefs and values that would be likely to influence her if she had capacity, and the other factors that she would be likely to consider if she were able to do so.
  • Take into account the views of anyone engaged in caring for Mrs Aidiniantz or interested in her welfare as to what would be in her best interests.
    1. As to the first three of these matters:
    • While it is possible that if Mrs Aidiniantz’s physical health improves she may recover some degree of decision-making capacity, this is not foreseeable at the present time.
    • Mrs Aidiniantz has participated as fully as possible in the decision-making process by means of the involvement of Mr Gillman-Smith, Ms G and Ms Gieve.
  • Mrs Aidiniantz is someone with strong family values, whose already much-reduced ability to assert herself has long been overborne by the ferocity of the family conflict. She would want to be at home if it were possible. She would want to have normal, easy relations with all her children if it were possible.
  1. The obligation to take into account the views of those caring for Mrs Aidiniantz or interested in her welfare takes me to the heart of the difficulty in this case. I am aware of the views of her four adult children and have set them out above.
  2. Having done that, I have concluded, uniquely, that I should attach no weight at all to their views about their mother’s welfare. These children have, in my view, forfeited the right to have their views taken seriously on the question of what is in their mother’s best interests. They have no insight into her obvious longing for peace. The evidence of John and Linda showed only bitterness and contempt for each other. Neither side sees how important the other is to their mother. None of them reflects on their own behaviour. Instead, every action is dictated by the wish to get the better of the other. I have referred to John’s aggressive efforts to get Stephen and Ruth out of 1 Parkgate Road and his willingness to put his mother in a home he knows nothing about. I have referred to the respondents’ blatant attempts to obstruct John’s contact. As soon as Mrs Aidiniantz’s voice was heard by outsiders, however faintly, they physically removed her; in 2014 it was to Linda’s home, and a year later to the day it was to Florida. That trip was a blatant defiance of the court’s intentions and it is a measure of their lack of insight that the respondents imagine that it would be seen in any other way.
  3. Nor can I attach weight to the views of Ms AH. Normally the views of a professional carer in the midst of a family dispute will be of value, but she has become too emotionally involved and partisan to see where Mrs Aidiniantz’s best interests lie.
  4. I have some sympathy for Mrs Aidiniantz’s sister Ruth, but she is in the same camp as Linda, Stephen and Jennifer and has not been able to moderate their behaviour.Decision
  5. Turning to the issues and taking account of all the circumstances, I conclude that it would not be in Mrs Aidiniantz’s interests to return to 1 Parkgate Road. In the first place, I accept the evidence of Ms G that she needs the care package that is on offer at the nursing home. Two medically qualified staff are needed at all times. Ms AH and those she enlists to help her are unqualified and unsuited to demonstrating the necessary professional standards. Secondly, and more decisively, it is impossible to approve an arrangement that returns Mrs Aidiniantz to her home when her children have turned it into a warzone. If John took over 1 Parkgate Road, things would be no better. Mrs Aidiniantz needs a safe haven from her children’s activities, and that is what she has found in the nursing home. She would not have this respite in a setting that was controlled by either camp.
  6. The family collectively has the means to pay for Mrs Aidiniantz’s care in the nursing home. When promoting their preferred options, both John and Linda said that they would pay for them if necessary but would expect a contribution from the other. Now that the identity of the placement has been resolved, the family should act in accordance with that principle.
  7. As to contact, I will adopt the plan supported by the nursing home and the Official Solicitor for separate daily visiting by both sides of the family. Outings that are acceptable to the home on medical grounds can take place, but I suggest that visits to 1 Parkgate Road are approached with caution.
  8. Each side of the family can bring whoever they want with them during their contact times, provided the home is content with this. There is no more reason to prevent John from bringing his family than to prevent Jennifer from bringing hers. If she is invited by the respondents, Ms AH can visit from time to time, but she will not be resuming her role as a carer. If anyone thinks it is a good idea for Mr Siddiqi to visit, they can share their time with him.
  9. I note that the Official Solicitor proposes that visiting should be restricted to family members and that contact with others can take place on trips outside the home. He expresses concern about the role played by Ms AH and Mr Siddiqi. There is in fact no sign of any harm having come from their few visits to date and, given the way in which the family members themselves behave, I cannot share the view that the exclusion of other partisans would allow Mrs Aidiniantz to feel “free of influence”. The management of the home should be left to manage these issues.
  10. While Mrs Aidiniantz resides at the care home, there is no need for a welfare deputy. The management of the home will protect her day-to-day interests.
  11. Finally, I shall not appoint a property or affairs deputy, nor require the Official Solicitor to carry out further financial inquiries into Mrs Aidiniantz’s affairs. I agree with the Official Solicitor that any financial abuse of the elderly is a serious matter, but that here a third party investigation would be complicated, expensive and unlikely to be of benefit to Mrs Aidiniantz, whose needs are currently being met. I will make the appropriate orders for the reception of her modest pensions. Other disputes about money, property and shares can be pursued by her children elsewhere if that is their choice.Costs
  12. The parties can make submissions on costs, and I will consider them on their merits. I will nonetheless indicate my current thinking in an attempt to foreshorten matters and save further expense.
  13. The parties’ costs are, broadly: John £104,000

    Respondents £110,000

    Official Solicitor £57,000

    The Official Solicitor has been given security from the parties equally for the full amount of his costs. There is no reason why the public should bear any of those and I expect to order that the Official Solicitor’s costs will be met equally by the parties.

  14. As to costs as between the parties, the normal rule is that there should be no order. Each side rightly cautions the court against assuming that because there are so many allegations and counter-allegations it is a case of “six of one and half a dozen of the other”. I make no such assumption but nevertheless reach the conclusion that there is little to choose between these parties in regard to their litigation conduct and their conduct towards their mother. While the respondents’ conduct during these proceedings has been even worse than the applicant’s, it would be unrealistic to separate these matters from the overall history. Any departure from the ‘no order’ principle would probably be in the form of an order that each side should pay the other side’s costs as a mark of the court’s indignation.

 

 

 

 

"Benedict! HEY Benedict, you bum! What happened to the good clean fight I asked for? That ain't ARM wrestling"

“Benedict! HEY Benedict, you bum! What happened to the good clean fight I asked for? That ain’t ARM wrestling”

Children travelling to join ISIS

The Tower Hamlets case attracted quite a bit of media attention, and the judgment is now out. It contains quite a bit of practical guidance for all agencies where there is a concern that a child is going to be sent or going under their own volition to a country such as Syria with an intention that they join a terrorist organisation such as ISIS.

Tower Hamlets v M and Others 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/869.html

The case was heard, alongside another one mentioned in paragraph 6, by Mr Justice Hayden.

The Judge recognised that the seizure of the children’s passports did not require any evolution or extension of the law, but could be done under existing provisions, but did set out some practical recommendations to be followed.

 

  1. This course, though it arises in circumstances which do not have recent precedent, did not in any way require an evolution in the law itself. For example, the jurisdiction was recognised in Re A-K (Foreign Passport: Jurisdiction) [1997] 2 FLR 569.
  2. Both cases came before me last week on ex parte application. I was satisfied, on the evidence presented to me, both that the measures sought were proportionate and that there were strong grounds for believing the situation was urgent. I remain convinced of both.
  3. The removal of an individual’s passport, even on a temporary basis, be that of an adult or child, is a very significant incursion into the individual’s freedom and personal autonomy. It is never an order that can be made lightly. Where only the State, in this case through the arm of the local authority, appears in court, it must never be forgotten that the court requires a very high degree of candour on the part of all of those involved.

 

The Judge went on to explain that by candour, he did not just mean honesty and that this was a given, but that the evidence presented to the Court for such an application must be the fullest possible, and that even evidence that would seem to be harmful or hinder the application must be shared with the Court.

  1. Rather, I wish to emphasise that the fullest possible information must be placed before the court in an entirely unpartisan way. Both the evidence which supports the application and that which runs counter to its objectives. Nothing less than that will suffice.
  2. This duty, in such an application, extends not merely to counsel and solicitors but to all involved: police; social services; whichever professional capacity.
  3. Moreover, the lawyers involved must take great care to emphasise and reinforce this obligation to their lay and professional clients in clear and unambiguous terms. This very high degree of candour must also be accompanied by careful consideration as to whether the facts present a real degree of urgency, which of themselves necessitate an application being made on an ex parte basis.

There were a couple of points in the Tower Hamlets case that prompted that – the first being that the orders made necessarily required the police to take a number of actions – the Court had understood that the police were aware and supportive, only to learn at a later stage that the police were unhappy about some of the things they had been asked to do.

This was very serious. Counsel for the Local Authority had specifically addressed the Court on this, and his instructions had been plain that the police supported the Local Authority applications and said so unequivocally to the Court twice. [I will make it really plain that the Judge was satisfied that Counsel had been sold a pup, rather than was intentionally misleading the Court]

 

  1. I had been told by Mr Barnes, counsel who appears on behalf of Tower Hamlets, at the first hearing, on 20 March, when the Local Authority appeared alone, that the police supported the Local Authority’s actions. In fact, I twice asked whether that was the case, and twice Mr Barnes reassured me, unequivocally, that it was. I have no doubt at all that those were his instructions.

Hoerver, after the orders were made, it had become obvious that the police had not been as involved in the process as the Court had been led to understand. To the point that the police had been liaising with the High Court tipstaff about wanting to see if the passports could be handed over voluntarily by the families, and the Judge suspended his orders.

 

  1. However, on Saturday afternoon, I received a telephone call from the High Court Tipstaff to inform me that the police considered that they had not had proper chance to evaluate the risk identified in the Local Authority’s application. And insofar as they had, they considered that enforcement of the orders might not be required.
  2. In essence, I was told, they wished to see if it might be possible to secure the surrender of the passports, as contemplated by the orders, by cooperation with the families.
  3. In view of the fact that this information, given to the High Court Tipstaff, came from a team specialist in counter terrorism, and I have been told authorised at very senior level, I ordered the immediate suspension of my earlier order.

 

That is obviously extremely serious, and the Judge rightly explored it further on the return date.

  1. However, during the course of that hearing, Mr Barnes confirmed that a misleading impression had indeed been given by the Local Authority to the court on 20 March.
  2. Whilst it is correct to say that the police had been informed of the applications, as I was told, investigation of how and when they were told, undertaken at my insistence, revealed that they had only been notified of the application at around 2 o’clock on 20 March by email and had, therefore, no real chance to consider their response.
  3. I pause to say that by 3.30 that afternoon the Local Authority were already before me.
  4. I regret to say that I have concluded that the Local Authority consciously misrepresented the extent of the police awareness of this application. I do not reach that conclusion lightly. It is for this reason that I have felt it necessary to restate that which, to my mind, ought properly to be instinctive to every professional in this field, that is to say the very high degree of candour required in applications of this kind.

Very serious indeed.

 

The second was that there had been an issue over whether one of the children’s passports was (a) missing and (b) whether it was expired in any event. This was obviously a very critical point, given that what was being sought was orders to prevent the children leaving the country. The Court had been given information about this, in good faith, that later turned out not to be accurate. (It is all set out at the end of the judgment if you want to know more)

 

I should like to take this opportunity to distil a number of core principles.

(i) The lawyers should take care to draft, at very least in outline, the scope and ambit of the orders they seek and in respect of whom they seek it. This should be undertaken before coming to court. That will not only expedite the subsequent service of the orders on those concerned, it is also a crucial forensic discipline, compelling the lawyers to think in a properly focused manner about the specific orders they seek;

(ii) Thought should be given, from the very outset, as to how quickly the case can be restored on notice. This is the essential requisite of fairness in the process, now buttressed by article 6 of the European Convention on Human Rights;

(iii) Even though these cases will, of necessity, be brought before the court in circumstances of urgency, they nonetheless require the instruction of senior and experienced lawyers. The issues have profound consequences, not limited to the individuals concerned, and will frequently require a delicate balancing of competing and potentially conflicting rights and interests;

(iv) All involved must recognise that in this particular process it is the interest of the individual child that is paramount. This cannot be eclipsed by wider considerations of counter terrorism policy or operations, but it must be recognised that the decision the court is being asked to take can only be arrived at against an informed understanding of that wider canvas. It is essential that the court be provided with that material in appropriate detail;

(v) It will never be satisfactory, in applications of this kind, merely to offer verbal assurance, through counsel or any other individual, that the police, security forces or those involved in counter terrorism, are aware of and support the application. There must in future always be ‘hard’ evidence, i.e evidence which is cogent and coherent, placed before the court and capable of being subject to appropriate scrutiny. The format of the evidence may vary from case to case. It may require a police presence in court. There may be the need for police/counter terrorism officers to be represented, written and sworn statements may sometimes suffice. On occasion evidence may be received by secure telephone or video link;

(vi) Justified interference with the article 8 rights of a minor will always require public scrutiny at some stage in the process. In both cases this week, the press attended. It was only necessary for them to withdraw on one occasion, at the request of a very senior police officer present in court, supported by the local authority. The request was made because sensitive issues of policy and national security arose. Transparency, that is to say the attendance of accredited press officials in court, remains the presumption here, as it now is in all aspects of the work of the family justice system;

(vii) Recognising that there will be an urgency to these applications, careful attention, in advance of the hearing, should be given to the framework of reporting restrictions required to protect the child from publicity. In this exercise, it should be remembered that some of the families involved may already have excited a degree of press coverage. Indeed, they may, on occasion, have sought it out. There is a risk that identification of the children might be revealed by piecing together information already in the public domain, i.e. the ‘jigsaw effect’. As, in paragraph 1 above, and for similar reasons, the restrictions contended for should be drafted before coming to court;

(viii) Though it may appear trite to say so, an evaluation of the reporting restrictions, as I have been reminded by the press this morning, should always have at the forefront of the exercise the reality that publicity is not confined to the conventional or recognised media outlets, but extends, with inevitably greater challenges, to the wide range of social media likely to be the primary sources of information for these children, their peers and those with whom they interact more generally;

(ix) The importance of coordinated strategy, predicated on open and respectful cooperation between all the safeguarding agencies involved, simply cannot be overstated. An ongoing dialogue in which each party respects, and I make no apology for repeating the word respect, the contribution of the other, is most likely to achieve good and informed decision making.