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Trying to get child back after adoption order made

This case made quite a lot of news last year – parents of a boy born in 2012, who suffered significant fractures. Within care proceedings, there was a finding of fact that the parents had caused these injuries and in 2013, a Care Order and Placement Order was made. In 2014, the child was placed with prospective adopters and an adoption order was made. In late 2015 (3 years after the injuries, and a year after the adoption order was made) the parents were acquitted at the criminal trial.  In fact, the Judge at the criminal trial directed the jury to acquit as there was no case to answer.  (That’s obviously a lot stronger than the case going before a jury and the Jury not reaching a 12 or 10 juror verdict that they were sure the parents were guilty. This was a criminal Judge saying that the evidence showed no case to answer)

Understandably, there’s a lot of public disquiet about whether there’s been a miscarriage of justice here, and what would happen.

 

The law isn’t very helpful to the parents in terms of their ultimate aim to get their child back. An adoption order being overturned after it has been made is very very unusual. I’ve found only 2 reported cases where that happened. One was a step-parent adoption which the birth father had agreed to and later learned that the mother had lied to him, concealing the fact that she had a terminal illness and he would never have agreed to the adoption. The other was

PK v Mr and Mrs K 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2316.html

 

Where the child had been adopted by family members who had physically abused the child, who later left them and went back to live with mother. Everyone in the case was supportive of the adoption order being revoked.  I wrote about the difficulties here:-

Revocation of adoption order

 

The lead case on ‘oh, maybe we got this wrong, but the adoption orders have been made now’ is  Webster, where adoption orders were made on the basis of physical injuries and a Court was later persuaded that the injury had been the result of scurvy, itself the result of a failure of a brand of formula milk to have sufficient vitamin C.  The Court there, as a result of the passage of time and public policy issues declined to revoke the adoption orders.

http://www.bailii.org/ew/cases/EWCA/Civ/2009/59.html

 

“Adoption is a statutory process; the law relating to it is very clear. The scope for the exercise of judicial discretion is severely curtailed. Once Orders for Adoption have been lawfully and properly made, it is only in highly exceptional and very particular circumstances that the court will permit them to be set aside.”

 

 

Anyway, in this case

Re X (A Child) 2016

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1342.html

 

the parents went to the Court of Appeal, and all parties there *  supported a hearing taking place to DECIDE whether there should be a re-hearing of the finding of facts taking place, for the benefit of the child having the truth about their life and childhood and the public confidence in fairness of the justice system.

 

(* I add the asterisk, because as you can see from Re X, the adopters – who were at that point the child’s legal parents and had been for over a year, were not told about the circumstances or the litigation and were not parties to the proceedings. I’m not at all sure how that is fair or compliant with their article 6 rights. They were and are in law, the legal parents of the child, and it clearly had an impact on their family life.

Ms Fottrell QC made that same point, and I absolutely agree with her. The President bravely ducks the issue.

At the adjourned hearing, Ms Fottrell set out her clients’ position as being that they “appreciate and accept that in the interests of fairness the birth family are entitled to have a hearing on the facts following on from the outcome of the criminal trial”, but opposing any application to set aside the adoption order. Although making clear that her clients made no point against any of the parties, Ms Fottrell submitted that the decision to exclude the adoptive parents – X’s legal parents – from the appeal process and the permission hearing in the Court of Appeal was wrong and in breach of both Article 6 and Article 8 of the Convention. I record Ms Fottrell’s submission on the point; it is not a matter on which it would be proper for me to comment.)

 

The case has now come before the President, and he has published this judgment.   Bear in mind that the re-hearing has not taken place, so at this stage the family Court hasn’t decided whether the threshold criteria was wrongly found in 2013, or even whether it was right then on what was known at the time, but on what we know now it can’t stand.  The parents have been cleared and pretty comprehensively in a criminal Court, but the standard of proof is higher there, so it doesn’t automatically follow that any re-hearing would be bound to clear them. It very well might, but it might not.

 

As a matter of law, there isn’t really an easy legal framework for this to operate in. The parents aren’t able at this stage to apply to revoke the adoption application, because the findings in the care proceedings still stand, it isn’t an appeal out of time. So we of course use the Court’s magical sparkle powers of the inherent jurisdiction to have a decision as to whether to have a re-hearing. That’s not automatic legal aid, but it doesn’t say in the judgment that the parents  lawyers are acting pro-bono (for free) so they must have been one of those rare cases where the Legal Aid Agency grant exceptional funding under s10 LASPO.

 

The President reminded everyone that if there was a re-hearing and the findings were overturned, that would not automatically lead to the return of the child, and that the Court are not dealing with that application at all (yet), but of course, it is a prelude to the parents making such an application if the re-hearing vindicates them.

 

 

  • I am not concerned today with any application which may hereafter be made by the birth parents seeking to challenge the adoption order. That is a matter for another day and, in all probability, for another court. It is relevant only because Ms Cover has made it clear on instructions, both in her position statement and again orally, that the present application before me is, at least in part, what might be called the springboard for such a further application. However, as I observed in In re C, paras 44-46:

 

“44 The law sets a very high bar against any challenge to an adoption order. An adoption order once lawfully and properly made can be set aside “only in highly exceptional and very particular circumstances”: In re W (Children), para 149. In that case, the adoption orders “were made in good faith on the evidence then available” (para 177) and therefore stood, even though the natural parents had suffered a “serious injustice”: para 148. In re W (Children) can be contrasted with In re K (A Minor) (Adoption: Foreign Child) [1997] 2 FLR 221 where an adoption order was set aside in circumstances where there had been (p 227) “inept handling by the county court of the entire adoption process” and (p 228), failure to comply with the requirements of the Adoption Rules, “procedural irregularities go[ing] far beyond the cosmetic”, “a fundamental injustice … to [the child] since the wider considerations of her welfare were not considered” and “no proper hearing of the adoption application”. Butler-Sloss LJ held (p 228) that: “there are cases where a fundamental breach of natural justice will require a court to set an adoption order aside.”

45 Whether the natural father would have succeeded in meeting that very stringent test is, in my judgment, open to serious question. I do not want to be understood as saying that he would not; but equally I do not want to be understood as saying that he would. It certainly should not be assumed that his appeal would have succeeded.

46 In relation to this aspect of the matter I propose to add only this: I am bound to say that I find Judge Altman’s decision to proceed in the full knowledge that there was a pending application to this court for permission to appeal very difficult to understand, let alone to justify.”

 

  • Likewise here I express no view on a point of no little difficulty and which is, as I have said, a matter for anther day. The significance of it for present purposes is simply that, as Ms Fottrell correctly submitted, success by the birth parents (if they are successful) on the re-hearing of the facts by no means assures them of success in seeking to have the adoption order set aside.

 

 

 

In terms of whether there should be a re-hearing, the President summed up the arguments

 

 

  • The case put forward by the birth parents is simple and compelling. They have been, they say, just like the parents in Webster, the victims of a miscarriage of justice. They seek to clear their names, both so that they may be vindicated and also so that there is no risk of the judge’s findings being held against them in future, whether in a forensic or in any other context.
  • For different reasons, their desire for there to be a re-hearing is supported by X’s guardian, who submits that it is in X’s best interests that he should know the truth about his birth parents and about what did or did not happen to him.
  • I agree with the guardian. X has a right (I put the matter descriptively rather than definitively) to know the truth about his past and about his birth parents. This 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, Lord Hodson, in the context of disputed paternity, 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.”

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.”

To the same effect, in Re H and A (Paternity: Blood Tests) [2002] EWCA Civ 383, [2002] 1 FLR 1145, para 29, Thorpe LJ identified one of the principles to be drawn from the cases as being:

“that the interests of justice are best served by the ascertainment of the truth.”

 

  • But this principle is not confined to issues of paternity, as is clear from Strasbourg law, which recognises it as an ingredient of the rights protected by Article 8: Gaskin v United Kingdom (1990) 12 EHRR 36, [1990] 1 FLR 167, and 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.
  • The wide impact of the principle that, from a child’s perspective, their interests are best served by the ascertainment of the truth, whatever that truth may be, is illustrated by 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.”

 

  • There is also, however, a wider and very important public interest which, in my judgment, is here in play. I make no apologies for repeating in this context what I said in Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2394 (Fam), [2014] 1 FLR 523, paras 29-30:

 

“29 … We strive to avoid miscarriages of justice, but human justice is inevitably fallible. The Oldham and Webster cases stand as terrible warning to everyone involved in the family justice system, the latter as stark illustration of the fact that a miscarriage of justice which comes to light only after the child has been adopted will very probably be irremediable: W v Oldham Metropolitan Borough Council [2005] EWCA Civ 1247, [2006] 1 FLR 543, Oldham Metropolitan Borough Council v GW & PW [[2007] EWHC 136 (Fam), [2007] 2 FLR 597] and Webster v Norfolk County Council and the Children (By Their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378. Of course, as Wall LJ said in Webster, para [197], ‘the system provides a remedy. It requires determined lawyers and determined parties’. So, as I entirely agree, the role of specialist family counsel is vital in ensuring that justice is done and that so far as possible miscarriages of justice are prevented. But that, if I may say so with all respect to my predecessor, is only part of the remedy. We must have the humility to recognise – and to acknowledge – that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice.

[30] Almost 10 years ago I said this (Re B (A Child) (Disclosure), para [103]):

‘… We cannot afford to proceed on the blinkered assumption that there have been no miscarriages of justice in the family justice system. This is something that has to be addressed with honesty and candour if the family justice system is not to suffer further loss of public confidence. Open and public debate in the media is essential.’

I remain of that view. The passage of the years has done nothing to diminish the point; if anything quite the contrary.”

 

  • In my judgment, and giving appropriate weight to the terrible burden which what is proposed will inevitably impose on the adoptive parents, although bravely and responsibly they do not oppose what is proposed, the claims of the birth parents, the best interests of X, and the public interest all point in the same direction: there must be a re-opening of the finding of fact hearing, so that the facts (whatever they may turn out to be) – the truth – can be ascertained in the light of all the evidence which is now available.

 

 

 

The law on re-opening a case is Re Z, and the President quickly skates through that (having already decided above that there is going to BE a re-hearing)

 

The re-hearing is going to take place in October 2016. That will be four years after the injury, three years after the Care Order, two years after the Adoption Order, and a year after the parents were exonerated at the criminal trial.  If nothing else, this case has not shown that the legal process can react swiftly. The President has also indicated that there may be before then a hearing about how the Press can report the re-hearing (thinking of the Poppi Worthington case, and the press interest there is going to be in this, it might for example include almost-live reporting and tweeting)

https://www.theguardian.com/uk-news/2015/oct/09/parents-cleared-of-abuse-launch-legal-battle-to-win-custody-of-adopted-baby

 

IF the findings are overturned at that re-hearing, there’s still a massive legal mountain to climb for the parents. The guidance in Webster is from the Supreme Court, so it isn’t open to the President to simply ignore it. It does however, give the small chink of light  An adoption order once lawfully and properly made can be set aside “only in highly exceptional and very particular circumstances”:

So a Court could potentially find that these ARE highly exceptional and very particular circumstances.  (though showing why very similar circumstances in Webster didn’t meet the test but this one does is going to require some particularly skilful footwork.)

 

I appreciate that people’s FEELINGS about this will be very strong, and many of you will strongly support the parents getting the child back. If I was doing the odds, based on the Webster decision, it is at best a 20% chance, even if they overturn the findings.  The Webster decision, in law, is a really high mountain to climb.  That test, as a Supreme Court decision, is a test that really only Parliament or the ECHR could change. So it is not hopeless for these parents, but legally they have a mountain to climb.

It is certainly true that the public debate and the judicial position on adoption is rather different than it was in 2008 when Webster was decided. It is possible that this will have an impact.

 

A dreadful set of circumstances for everyone involved – if the parents are found both to the criminal AND civil standard of proof to have not injured their child then what has happened to them has been the most awful thing one can imagine. They will have been completely let down by the British justice system.

It is almost impossible to understand how the child would make sense of it. The child’s adopters, who have had this child in their home for two years and who are now the legal parents of that child and consider him as part of the family, and who went into that process in complete good faith have to face months of doubt and anxiety about the future.  It would be nice if whatever the Court finally decide about the adoption order, both his adoptive parents and his birth parents get to play a strong part in his future life, but that in itself would be a brand new arrangement, never tried before in England, and litigation doesn’t often foster that spirit of all parties wanting to work together to do what is best for the child.

 

One thing is for sure, we are going to have a huge public debate about adoption in October 2016 when this case is decided, and an even bigger one if the parents are cleared but the adoption order still stands  (as the precedents suggest that it would)

Court proceedings were a shambles

 

I would agree with the Court of Appeal’s summing up here.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2015/992.html

In the case of Re K-L (Children) 2015, the Court of Appeal had to unpick an appeal centred around a judgment of Her Honour Judge Lyon after a finding of fact hearing in care proceedings. There were a raft of allegations to determine, and centrally, some of them involved findings that the father had sexually abused a child.

However a Judge determines those findings, it is vital that everyone knows exactly what was and wasn’t decided.

At the end of the finding of fact proceedings on 23rd April 2015, which had overrun somewhat, the Judge was more than a little exasperated

  1. At 4.40 pm, the judge returned to court and delivered a short judgment. Paragraph 1 of the judge’s judgment was as follows:

    “I am not to be held to anything I now say which is why I have deliberately not given it to you and I am saying it has yet to be perfected because I have not had enough time. Unfortunately your colleagues massively underestimated how much time they needed on their case, which I ended up taking in, and of course we have the police as well so I have not had a full run at this at all today so my apologies. However, as I say what I am going to do is just give a rough indication of what I am doing and how I have set things out in the judgment.”

  2. The judge then recounted what had happened in the course of the trial. In the last four paragraphs of the judgment, the judge set out her conclusions as follows:

    “10. The court heard the next day from the mother, TL, who became very upset as she recalled her discussion with both T and P as to what had happened to them. Then finally the court heard from Mr LE. The court is finding in accordance with the submissions made on behalf of the Local Authority and counsel for the mother, who united in their submissions, with the Local Authority adopting those of the mother. Therefore I am basically going with the submissions made on behalf of the Local Authority and the mother and supported to a considerable degree by the submissions made on behalf of the guardian so I have reproduced all of those. I have also reproduced the submissions made on behalf of Mr E by Mr Heaney but I am finding against him essentially with regard to the abuse of the children.

    11. The issues are set out very clearly in the various submissions and as I say the court is accepting those of the Local Authority supporting the mother and that is the purport of your submissions, was it not, Miss Mallon?

    [Miss Mallon: Yes]

    12. Miss Mallon, in relation to the mother, however, you did raise issues about whether the mother had acted appropriately and so in accordance with the findings sought, and I am just having to leaf back to those, I am finding points 3, 4 and 5 of your findings sought which will be between pages 1 and 2 of the document, I am finding those to be made out again on the basis of the evidence that we heard. Again I am going to have to craft this appropriately to indicate what I am finding there but the First Respondent, TL, failed to protect the children from sustaining physical harm at the hands of LE; that she failed to seek medical attention for P and for T after they had sustained physical harm at the hands of LE and finally that she repeatedly failed to protect the children from witnessing, whether through hearing or seeing, domestic violence. Are you with me, Miss Mallon?

    [Miss Mallon: Yes]

    13. Therefore to indicate again very clearly as far as the schedule of findings sought I am finding that the third respondent, LE, sexually abused T as exemplified by his doing rudies, namely inappropriately touching T’s penis, masturbating the child T, putting curry up his bottom. Also finding that the third respondent, LE, physically abused the children, PL and TK, as exemplified by kicking T on the leg, attempting to strangle T — and so the court does not accept the “play” explanation offered by the father — and punching P on the back which, as was submitted, was a very serious injury to inflict on a child of P’s age with all the attendant concerns that would have arisen.”

 

Whether or not those findings were right, it is absolutely and totally clear that the Judge had made findings that father had sexually abused the child as alleged, and had physically abused the child including strangling him on one occasion.

It was therefore something of a shock to everyone when the judgment itself was circulated on 8th May 2015 and set out that those findings were NOT proved in relation to sexual abuse, but were proved in relation to the physical abuse allegations.

 

Understandably, the parties sought clarification from the Judge

 

What the judge said in judgment 3 was this:

“I did go into court without any papers in front of me and stated that I agreed with the case put forward by the local authority with which, in very large part, I did except, one being “except in relation to the allegation of sexual abuse”. I did not make this clear, as essentially this was an ‘off the cuff indication’ and I did not make things clear at all, so it did appear as though I was making findings agreeing with each of the allegations made in the Schedule, whereas whilst I was agreeing with all the other findings sought as to physical and emotional abuse I did not agree with the finding of sexual abuse and I have now set the reasons for this out which given the difficulties we had over the ABE Interviews of T, is perhaps more to have been expected and I can only apologise fully for the rushed way in which I handled things on the final day of the hearing and thus stated my finding as to these sexual abuse allegations wrong.”

The legal issues for the case are :- can a Judge change his or her mind about a judgment, and when does that power end?  And was the Judge wrong in changing her mind in this particular case?

As long-term readers may recall, this issue has come up before. And the Supreme Court resolved it.

https://suesspiciousminds.com/2013/02/21/if-you-change-your-mind-im-the-first-in-line/

A Judge CAN change their mind about a judgment even after delivering it even after the order arising frtom the judgment is sealed, but they must provide reasons for doing so.

  1. The Supreme Court held that justice might require the revisiting of a decision for no more reason that the judge had had a carefully considered change of mind, since every case could depend upon the particular circumstances. The Supreme Court held that the power of the judge to change his or her mind had to be exercised judicially and not capriciously.
  2. The leading judgment was given by Lady Hale. At paragraph 30, Lady Hale said this:

    “As the court pointed out in Re Harrison’s Share Under a Settlement [1955] Ch 260, 284, the discretion must be exercised “judicially and not capriciously”. This may entail offering the parties the opportunity of addressing the judge on whether she should or should not change her decision. The longer the interval between the two decisions the more likely it is that it would not be fair to do otherwise. In this particular case, however, there had been the usual mass of documentary material, the long drawn-out process of hearing the oral evidence, and very full written submissions after the evidence was completed. It is difficult to see what any further submissions could have done, other than to re-iterate what had already been said.”

  3. Lady Hale went on to discuss what would be the position if the order made by the judge after the preliminary judgment had been sealed. Lady Hale held that that would have made no difference. The judge would still have been entitled to have a change of mind if there was good reason to do so.
  4. At paragraph 46, Lady Hale said this:

    As Peter Gibson LJ pointed out in Robinson v Fernsby [2004] WTLR 257, para 120, judicial tergiversation is not to be encouraged. On the other hand, it takes courage and intellectual honesty to admit one’s mistakes. The best safeguard against having to do so is a fully and properly reasoned judgment in the first place. A properly reasoned judgment in this case would have addressed the matters raised in counsel’s email of the 16 December 2011. It would have identified the opportunities of each parent to inflict each of the injuries by reference to the medical evidence about the nature, manner of infliction and timing of those injuries and to the parents’ and other evidence about their movements during the relevant periods. It would have addressed the credibility of the evidence given by each parent, having regard in this case to the problems presented by the mother’s mental illness. Had she done this, the judge might well have been able to explain why it was that she concluded that it was the father who had more than once snapped under the tension. But she did not do so, and it is a fair inference that it was the task of properly responding to the questions raised by counsel for the father which caused her to reconsider her decision.”

In passing, I’ll remark that “tergiversation” is not a word that I’ve ever enountered in polite conversation, and I’d even be slightly surprised if it cropped up in an email from long-time reader Martin Downs who does occasionally seek to expand my vocabulary.

It has two meanings :-

1. Evasion of straightforward action or clear cut statement

2. Desertion of a cause, position, party or faith

 

As luck would have it, both apply here. Keen-eyed readers will have spotted that Her Honour Judge Lyon was not claiming here that having thought further about her judgment, she had reconsidered her position and changed her views, she was just flatly denying that she’d ever found that father HAD perpetrated the sexual abuse.

So it was a bit different to the Supreme Court case, in which the Judge freely admitted that having decided X she later came to the conclusion that Y was the only proper decision to make. This was more an Orwellian “we have always been at war with Eurasia”

 

So, was Judge Lyon right in the assertion made in the third judgment?

  1. What the judge said in judgment 3 was this:

    “I did go into court without any papers in front of me and stated that I agreed with the case put forward by the local authority with which, in very large part, I did except, one being “except in relation to the allegation of sexual abuse”. I did not make this clear, as essentially this was an ‘off the cuff indication’ and I did not make things clear at all, so it did appear as though I was making findings agreeing with each of the allegations made in the Schedule, whereas whilst I was agreeing with all the other findings sought as to physical and emotional abuse I did not agree with the finding of sexual abuse and I have now set the reasons for this out which given the difficulties we had over the ABE Interviews of T, is perhaps more to have been expected and I can only apologise fully for the rushed way in which I handled things on the final day of the hearing and thus stated my finding as to these sexual abuse allegations wrong.”

  2. That explanation simply does not stand up to examination. Paragraphs 10 and 13 of judgment 1 cannot possibly be explained away as a mere slip of the tongue or misstatement on the part of the judge. It was simply not the case that the judge was saying one thing and meaning another.
  3. At paragraph 13 of judgment 1, the judge said:

    “Therefore to indicate again very clearly as far as the schedule of findings sought I am finding that the third respondent, [the father], sexually abused T as exemplified by his doing rudies, namely inappropriately touching T’s penis, masturbating the child T, putting curry up his bottom.”

  4. The judge was clearly saying what she meant and clearly stating what her findings then were. Therefore, as I say, the explanation for the changed decision given in judgment 3 does not stand up to scrutiny.

 

Given that the Judge HAD changed her position, the failure to provide a compelling explanation of what led to that was obviously going to fall short of the high test of the Supreme Court to change a judgment in a safe way.

 

  1. In my view, the history of this case is such that no one can have any confidence in the judge’s findings contained in judgment 3.
  2. In my view, the three judgments and the April order must be set aside. The case must be remitted to be reheard on all issues at the Liverpool Family Court.
  3. Finally, I must say this. The proceedings in the court below were a shambles. That is not the fault of any counsel in the case, nor is it the fault of the deputy judge. It is the four children at the centre of this case who suffer as a result of what has happened. Also, both the mother and the father have suffered much needless stress as a result of the course that this case has taken.
  4. On top of that, huge expense has been incurred, which no doubt will be borne by the public purse, as a result of matters which have gone wrong in this case.
  5. If my Lords agree, the judgments of this court will be referred to the President of the Family Division, so that he can consider whether any steps need to be taken to prevent such a situation arising again.

 

 

The case therefore will have to be re-heard.

Ryder LJ agreed, whilst defending that this was clearly out of character for Liverpool  Family Court.  [hmmm. There have been some decidedly peculiar appeals coming out of Liverpool in 2015 though]. And of course adds that there should never have been a finding of fact hearing in this case anyway…

 

  1. My Lord Jackson LJ describes a profoundly worrying sequence of events from the perspective of parties to children proceedings, including the children themselves.
  2. I am persuaded that the judge did not make a mistake on 23 April 2015. She clearly intended to make findings of sexual abuse against the father. Thereafter, she changed her mind, but did not accept that she had done so and has, as a consequence, not reasoned that change of mind.
  3. She misremembered what she had said on 23 April 2015 and subsequently recollected only an accidental use of language. That is sadly not an accurate memory, with the consequences described by my Lord, Jackson LJ.
  4. This is not, in my judgment, a circumstance described by the Supreme Court in Re: L. That is where the change of mind can stand. In this case the change of mind was not made judicially.
  5. I say in parentheses that this was a public law children’s application and I can see no basis for a split hearing upon the facts.
  6. Be that as it may, I am very concerned about the other aspects of the judge’s conduct of the determination described by my Lord, not least because it should be understood that this is not the way family proceedings are normally conducted before the Family Court in Liverpool, a matter impressed upon us by all counsel.

The Supreme Court ignore my new Act

Having laboured over the drafting of brand new legislation to avoid any disputes about where people live,  https://suesspiciousminds.com/2015/07/03/the-residenceschmesidence-act-2015/  I am disappointed that the Supreme Court did not take the opportunity to pick up that particular baton and run with it.

 

And if you thought that people were litigating about ordinary residence too much BEFORE, just you wait.

 

The Supreme Court in R (on the application of Cornwall Council) 2015  https://www.supremecourt.uk/cases/docs/uksc-2014-0092-judgment.pdf  were dealing with a tricky scenario.

 

P had been a child, and when he was a child, had been placed in foster care in Wiltshire. This was in 1991.  As part of his care, Wiltshire PLACED him in South Gloucestershire.   When P became an adult, his needs were such that he required accommodation under the National Assistance Act 1948.  His needs are estimated to cost about £80,000 per year and he is likely to need them for the remainder of his life, so the issue of which Local Authority pays is liable to cost millions.

P’s parents, when he was an adult, moved to Cornwall; who also got dragged into this, despite him never having set a foot in Cornwall until 2004 and only then on a short visit to his parents.  We also add into the mix that accommodation was found for P in Somerset.

 

It is real law-exam stuff.  I wrote about how the High Court resolved it here (back in 2012), and I obviously developed some form of mental scarring as a result, because when the Court of Appeal decision came in, I couldn’t even face looking at it.    (I’ve not sold this link, but if you are a masochist, or you are trying to decide whether to quit law forever and just want something to tip you over the edge, here it is  https://suesspiciousminds.com/2012/12/27/as-clear-as-a-bell-if-the-bell-were-made-out-of-mud/

 

[I’ll assume that you rightly skipped that link]

 

The majority opinion of the House of Lords is that where a Local Authority accommodate a young person, and that person then goes on to require adult services, there’s no break in ordinary residence just because they happened to put him in another area.  The LA who started the case off, keeep hold of the responsibility, even though the case moves from being a child case to an adult case, and moves from one Act to another.

 

54. The question therefore arises whether, despite the broad similarity and obvious underlying purpose of these provisions (namely that an authority should not be able to export its responsibility for providing the necessary accommodation by exporting the person who is in need of it), there is a hiatus in the legislation such that a person who was placed by X in the area of Y under the 1989 Act, and remained until his 18th birthday ordinarily resident in the area of X under the 1989 Act, is to be regarded on reaching that age as ordinarily resident in the area of Y for the purposes of the 1948 Act, with the result that responsibility for his care as an adult is then transferred to Y as a result of X having arranged for his accommodation as a child in the area of Y.

55. It is highly undesirable that this should be so. It would run counter to the policy discernable in both Acts that the ordinary residence of a person provided with accommodation should not be affected for the purposes of an authority’s responsibilities by the location of that person’s placement. It would also have potentially adverse consequences. For some needy children with particular disabilities the most suitable placement may be outside the boundaries of their local authority, and the people who are cared for in some specialist settings may comefrom all over the country. It would be highly regrettable if those who provide specialist care under the auspices of a local authority were constrained in their willingness to receive children from the area of another authority through considerations of the long term financial burden which would potentially follow.

 

That does make a degree of sense.  Firstly, if a Local Authority caring for P as a child, could remove any burden on caring for him as an adult by placing him in another local authority area, then these vulnerable individuals could become subject to a game of pass the parcel (but where you DON’T want to be holding the parcel when the music stops). Secondly, Local Authorities who had made provisions or had specialist facilities in their area for children could end up receiving a higher number of such children and then having to go on to care for them as adults. And thirdly, Local Authorities might jealously guard their borders, not being willing to accommodate children on behalf  of other Local Authorities who might be trying to shift the burden of responsibility in adulthood.

 

The majority opinion therefore concludes

 

59. In other words, it would be wrong to interpret section 24 of the 1948 Act so as to regard PH as having been ordinarily resident in South Gloucestershire by reason of a form of residence whose legal characteristics are to be found in the provisions of the 1989 Act. Since one of the characteristics of that placement is that it did not affect his ordinary residence under the statutory scheme, it would create an unnecessary and avoidable mismatch to treat the placement as having had that effect when it came to the transition in his care arrangements on his 18th birthday.

 

[The Supreme Court do not use this guache term, but in a reductive sense, the law on ordinary residence where a Local Authority places a young person in another area and that young person then needs services as an adult is “He who smelt it, dealt it”]

 

But see Lord Wilson’s stirring dissenting opinion, and it is hard not to disagree with his conclusions. What he says in effect is that the Supreme Court majority opinion is deciding the law not on the basis of a legal interpretation or following precedent, but deciding on which outcome has the better public policy implications.  This is all even better if, like me, you choose to imagine that Lord Wilson has the same speaking voice as John Le Mesurier used for Sergeant Wilson.  (“Are you sure that’s wise, sir?”)

 

I believe that this might be my FOURTH Dad's Army illustration on the blog...

I believe that this might be my FOURTH Dad’s Army illustration on the blog…

 

 

 

62. My colleagues consider that, in making his determination under section 32(3) of the National Assistance Act 1948 (“the 1948 Act”) of the place of PH’s ordinary residence on 26 December 2004 for the purpose of section 24(1) of the same Act, the Secretary of State could lawfully have reached only one conclusion. It is, according to them, that on that date, which was the day prior to his 18th birthday, PH was ordinarily resident in a county (Wiltshire):

a) in which in May 1991, ie about 13 years earlier, he had ceased to live upon his removal to live with the foster parents in South Gloucestershire;

b) to which, during the following 13 years, he never returned, not even just to stay overnight;

c) in which in November 1991, ie also about 13 years earlier, his parents had ceased to live upon their removal to live in Cornwall;

d)in which by 1997, ie about seven years earlier, both sets of his grandparents had, in one case because of relocation and in the other because of death, ceased to live; and

e) in which, from 1997 onwards until many years after 26 December 2004, no home remained available, even in principle, for his occupation.

63. Such is a conclusion to which, with great respect to my colleagues, I do not subscribe. It is a conclusion for which no party has contended at any stage of these proceedings. A court should tread cautiously before favouring a solution devised only by itself, particularly where, as here, it has been addressed by an array of excellent counsel instructed by public authorities widely experienced in this area of the law.

 

Whether you agree with Lord Wilson or not, you have it say that to be able to pour so much information into such a condensed and easy to follow two paragraphs is masterful.

 

He goes on

 

 

 

65. I must squarely confront the problem. There appear to be strong reasons of public policy which militate in favour of imposing upon Wiltshire, rather than upon South Gloucestershire, the obligation of making decisions about a suitable placement of PH following his 18th birthday and of funding whatever placement may thereafter be suitable for him from time to time. It would be a heavy financial burden for Wiltshire but its burden in the case of PH would be borne to the same extent by some other local authority in a reverse situation: in other words the burdens should even out. Public policy suggests:

a) that it is desirable that a local authority which has exercised the decision-making power (and has borne the funding burden) in relation to the placement of a mentally incapacitated minor should, in the light of its knowledge of his needs, continue to exercise that power (and bear that burden) following the attainment of his majority; and

b) that it is undesirable that a local authority which is exercising the decision-making power (and bearing the funding burden) in relation to the placement of an incapacitated minor should, while he remains a minor, be able to place him in a suitable facility in the area of another local authority (indeed, in the case of a private placement, without the consent of that local authority), with the result that, following the attainment of his majority, the decision-making power and, in particular, the financial burden should fall upon that other local authority. In the present case, for example, the evidence suggests that Wiltshire’s placement of PH in 1991 with his excellent specialist foster parents did not in any way involve the local authority of South Gloucestershire, which for the following 13 years appears to have played no part in directing or securing his care. Yet, on my analysis, it is South Gloucestershire which should thereafter have begun to exercise the decision-making power and, in particular, to bear the financial burden. The Secretary of State accepts that, of the young people who move from being looked after by local authorities as minors to being provided with accommodation by them as adults, those lacking capacity are only a small proportion. But he explains convincingly that, in the light of their specialised needs, the cost of maintaining them indefinitely is very high. He proceeds to identify real concerns that a few local authorities might therefore be motivated (to use the crude shorthand which, only for convenience, has been deployed in the hearing before this court) to “export” such a minor to the area of another local authority prior to the attainment of his majority; and equally that, were that other local authority to be the administrator of a specialist resource entirely suitable to the needs of a minor, it might nevertheless be motivated to refuse him admission to it for fear of the financial consequences following the attainment of his majority.

 

66. But such is the result which in my view the law, as it stands, clearly compels. I am not a legislator. Nor, with respect, are my colleagues.

 

Whether the case should be decided on law or public policy  (and I agree with Lord Wilson – if the Supreme Court start to decide cases on what it considers to be the best outcome for public policy then we are on a slippery slope), the Supreme Court have not really considered the real public policy outcome here.

 

If Local Authority A and Local Authority B are arguing about which area is responsible for providing care for little Tommy, then at the moment, they fight like cat and dog about meeting those costs for a maximum of 18 years.  Following this decision, the loser of that argument could, if little Tommy is going to require accommodation throughout his adult life, be stuck with those costs for 80-90 years.

Now, using your skill and judgment, do you think that those arguments will as a result become :-

(a) more amicable; or

(b) more contentious

 

 

 

 

 

 

The Adoption statistics

The Government have published their statistics (there’s a time delay, so these are the stats up to Autumn 2014)

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/436613/ALB_Business_Intelligence_Quarter_3_2014_to_2015.pdf

 

I suspect that the headline one  (which prompted all of those press releases in late April) is going to be this:-

 

 

Quarterly data suggests that the number of new decisions has continued to fall from 1,830 in quarter 2 2013-14 to 910 in quarter 3 2014-15, a decrease of 50%. The number of new placement orders have also continued to fall from 1,550 in quarter 2 2013-14 to 740 in quarter 3 2014-15, a decrease of 52%.

 

 

What they don’t have, is a measure of how many cases LA’s put before an Agency Decision Maker, so we can’t tell whether

 

  • Social workers were asking ADM’s for adoption approval less often, so less cases were approved
  • ADM’s were refusing a higher proportion of requests than previously, so less cases were approved
  • A combination of those factors  (which if so, would lead to even more of a drop – if social workers were only giving their ‘best’ cases for adoption to the ADM, but they were being knocked back, then you’d expect less and less cases to go to the ADM)

 

[And of course, what underpins all of that is whether social workers / ADMs were being overly cautious about the case law and not asking for adoption in cases where the Court would actually have made Placement Orders, or whether they were being realistic and knowing that if they asked for adoption they wouldn’t be capable of satisfying their Court that the tests were met]

 

 

What really fits is the increase stats on Special Guardianship Orders  – I haven’t seen the raw data, but the BBC claim this has tripled since 2012 (BS cough cough)

http://www.bbc.co.uk/news/uk-32840224

 

When you look at the graph showing Agency Decision Maker decisions that adoption should be the plan for the child over time, you can see the numbers drop off a cliff at the time of the Supreme Court decision in Re B (nothing else will do).

 

You can argue (and it is a legitimate argument, where Re B and Re B-S were a new test, or a nudge in the ribs to apply the existing tests with proper rigour, and whether that’s a good thing or a bad thing) but you can’t really argue as the current official narrative has it, that this isn’t even a thing. The graphs make it really obvious.

The quarter BEFORE Re B-S, 1830 decisions by ADMs that adoption was the right plan for the child. Re B-S hit in September 2013, so it would be the third quarter of 2013 when ADM’s would have known about it. Those numbers, 1290.  It is the sharpest drop of the entire graph.  It has continued to slope downwards since then, but the bit in the graph that looks like abseiling down the Eiger is Re B-S. You absolutely can’t dispute it.

The Myth-Buster document was published in December 2014, so we can’t see from the stats and graph whether that has led to a reversal of the pattern in the graph. We’ll see that in about six months, I suppose. Similarly, whether the Court of Appeal’s softening of position on “nothing else will do” translates into an increase in ADM decisions that adoption is the plan.

 

[Cynically, I doubt it. I’m well aware that I am not a normal human being in my interest in case law, and I haven’t always had it. For about my first five years in child protection law, you could get by on three cases  Re G (interim care is a deep freeze affording no tactical advantage), H and R  (the nature of the allegation doesn’t increase the standard of proof) and whatever at the time was the law on residential assessments.  Re B and Re B-S, with their hard-hitting message and backed by a soundbite ‘nothing else will do’ resonate with people much more than the inching back, case specific, deeply nuanced and incremental Court of Appeal cases since that time.  Even the Re R case https://suesspiciousminds.com/2014/12/18/re-r-is-b-s-dead/  that was intended to slay the Re B-S myths is so nuanced that it takes nine or ten reads to have a grasp of what it is actually saying, and almost the day after you’ve done that, you couldn’t actually put it into a meaningful summary sentence]

 

 

[I argued before HERE  https://suesspiciousminds.com/2015/05/15/adoption-rates-in-freefall/  that the Press narrative that the case law will mean ‘children suffering in unsuitable and unsafe homes’ is an emotive over-simplification. I’d stand by that. At the moment, the case law on adoption has been going through its most radical changes in a generation, and it is certainly less predictable than it has ever been to decide what sort of case will result in a Placement Order and what won’t.  We are in a period of re-balancing. I don’t know yet whether these figures show that we have found the right level of those cases where adoption IS the right plan to put before the Court, whether there are even more drops to come, or whether there’s an over-reaction to it.   I have a suspicion, given that the entire history of child protection and family justice is about lurches from child rescue to family preservation and vice versa, and an eventual settling down at one particular side of the scale but hopefully not at the absolute far end of the scale…]

 

Given the huge push to recruit adopters – all the Government policies about making it easier, less time-consuming, less intrusive, more appealing , this statistic may get less attention but must be concerning

 

Registrations to become an adopter have decreased by 24% from 1,340 in quarter 2 2014-15 to 1,020 in quarter 3 2014-15. The number of adopter families approved for adoption has decreased by 3% from 1,240 in quarter 2 2014-15 to 1,200 in quarter 3 2014-15.

 

 

We will wait to see how the Court decisions that moved children from prospective adopters to the birth family (which is a completely new phenomenon, having not occurred at all prior to December 2014) has on adoption recruitment and retention.

 

 

The backlog (which had stood at 1 approved adopter for every 3 children approved for adoption) has been nearly cleared.

 

Our most recent estimate for the “adopter gap” suggests that the gap has closed, and we now have more adopters than children waiting. However, there are still 2,600 children with a placement order not yet matched and the relevance of this measure assumes that matching is working effectively.

 

 

The number of adoption ORDERS made is, they claim the highest since recording began

 

3,740 children adopted in quarters 1 to 3 2014-15

2013-14 saw the highest number of adoptions from care since the current data collection began in 1992, with 5,050 children adopted from care.

 

 

When I have looked at Court stats on adoption http://www.ons.gov.uk/ons/publications/re-reference-tables.html?edition=tcm%3A77-316163   5050 looks like a pretty average year, with there having been figures nearly 50 per cent higher in the earlier 1990s.   (Now, it may be that the measure that is being used here is “Adoption of children who are in care” and that the Office of National Statistics figure bundles that in with ‘step-parent adoptions’,  so it is not a like-for-like comparison)

 

 

 

Finally, this statistic initially looks positive (how long does it take between a child coming into care and a child being placed for adoption  – you’d WANT that number to go down, since whether you want more or less children being adopted, most of us could agree that we wouldn’t want children to wait so long for a family to be found)

 

In 2013-14, the average number of days between entering care and placement was 594 days, an improvement from 656 days in 2012-13. Latest quarterly data suggests there has been a further improvement to 533 days. At 216 days, the average number of days between placement order and match in 2013-14 was a slight improvement on 2012-13. However, the latest quarterly data suggests that this has increased to 241 during quarter 3 2014-15.

 

 

The closer inspection is this :-

 

That since the 2012 figures, there has been legislation and huge resources expended on bringing care proceedings down from what was an average of 55 weeks to a target of 26 weeks.  That OUGHT to have had far more of an impact than 60 days being shaved off the time between entering care and a family being found.  It should be something more like a saving of 200 days. As the time from Placement Order to placement had gone slightly down (but was now going back up), that SUGGESTS that IF there is a saving of 30 weeks from start of care proceedings to Placement Order, but it results in only a time saving of 8 ½ weeks,  that there’s about 20 weeks unaccounted for.

 

Does that mean that :-

 

  • Whilst average time of care proceedings has gone down, it hasn’t gone down as MUCH for cases where adoption is the plan?  (That makes sense, as those are the ones that are most contentious and where all avenues tend to be exhausted?)
  • There’s been an increase in the time that children who go on to be adopted are spending in care PRIOR to care proceedings?  That “front-loading” element.

 

 

I don’t know how or if statistics on those issues are being kept.  It must be problematic that if we are compressing the time that care proceedings take, with all that involves, but barely reducing the time that a child waits between coming into care and a new family being found, have we really improved anything for the child?   (Note particularly that with the latest quarterly data, HALF the time that has been cut appears to have been lost by an increase in the family finding process.  216 days of family finding and matching post Placement Order equates to 30 weeks)

 

 

The notional 200 day saving from faster care proceedings isn’t turning into a real saving, and that feels counter-intuitive. What we’ve been told for years is that if decisions about children are made by the Courts quicker, the children will be easier to place  – they will be younger and have less issues (and thus, you’d assume, faster to place).

Was an autobiography harmful to a child?

 

The Supreme Court have given their decision in James Rhodes v OPO 2015

https://www.supremecourt.uk/cases/docs/uksc-2014-0251-judgment.pdf

 

This was a case in which James Rhodes, a concert pianist, author, and film-maker, wrote an autobiographical account of his life,  and where the mother of their child sought an injunction to prevent its publication. The Court of Appeal granted that injunction, based on an 1897 case called Wilkinson v  Downton. That case established a cause of action which was “intentionally causing physical or psychological harm”

Mr Rhodes took that case to the Supreme Court, and triumphed.

 

The Supreme Court posed the central question in this way:-

 

What, then, is the proper scope of the tort in the modern law? In particular, can it ever be used to prevent a person from publishing true information about himself?

 

When you read snippets from the book contained in the judgment, those snippets pull no punches. It describes the dreadful sexual abuse that the author sustained as a child, the harrowing impact that it had on him, the consequences throughout his life and how for the author, music provided an escape from that. The descriptions are brutal and shocking – but of course, so is what happened to this man as a child. The words hurt, but nothing like how the experience must have hurt.

One can also see that the mother of a young boy (who has Aspergers’ Syndrome, amongst other difficulties) would be worried about the boy coming across these accounts.  They are graphic accounts – they are so by intent – the author is wanting to convey just how monstrous what happened to him was, to reach out to other victims or potential victims, and possibly to reduce the chances of what happened to him happening to others. They are not easy to read – even for me – and I work within a field where I see accounts of abuse against children almost every week and would be expected to be somewhat more de-sensitised to it than the average adult. What James Rhodes has written is powerful and hard to read.  I commend him for it.

 

[This isn’t a terribly neutral summary, I am glad that he won this case – but nor do I think that the mother was a bad person for bringing the claim – I see entirely why she would not want her son to read this material whilst he is a child, and that in the modern era it is not as simple as just not having a copy in his home to read – the internet will have passages from it, indeed the judgment does, and other children who the son knows may come across it and make use of it]

 

As a matter of law then, what does the Supreme Court have to say about this tort?

Let’s look at the history first – as ever with old caselaw, the facts are quirky, and I’m sure that nobody involved ever imagined they’d be making legal history and newspaper headlines 120 years later.

 

Mr Wilkinson had been out at the races (I think that I can say without fear of defamation 120 years later that some degree of liquid refreshment may have played a part in the day’s events) and his friend Mr Downton decided that it would be an amusing practical joke to tell Mrs Wilkinson that Mr W had had an accident at the races, broken his leg and needed help.  Mrs W took it very badly and had weeks of nervous shock.

 

Wilkinson v Downton

31. Mr Downton secured a place for himself in legal history by a misconceived practical joke. He thought that it would be a cause of harmless amusement among the clientele of the Albion public house in Limehouse to tell the landlord’s wife, Mrs Wilkinson, a false tale that her husband had fractured his legs in an accident while on his way back from a race meeting and that he had sent a message to ask for her help to get him home. It cost her 1 shilling and 10 ½ pence to send her son and another helper on this fools’ errand, but a matter of far greater concern was the effect on her health. She suffered severe shock to her nervous system, which manifested itself in vomiting and weeks of physical suffering. Mrs Wilkinson had not shown any previous sign of predisposition to nervous shock. She and her husband sued Mr Downton, and the matter came to trial before Wright J and a jury.

32. Recovery of the transport costs incurred in response to Mr Wilkinson’s supposed request for help presented no legal difficulty. Such costs were recoverable as damages for deceit. The jury assessed damages for the illness caused to Mrs Wilkinson by her nervous shock (together with her husband’s claim for the resulting loss of her services) at £100, but the legal basis for making such an award was problematic.

33. Wright J rejected the argument that damages for deceit could include an award for Mrs Wilkinson’s suffering, because the essence of liability for deceit was that a maker of a false representation, intended to be acted upon, was liable to make good any loss naturally resulting from the representee acting on it, but the illness suffered by Mrs Wilkinson was not a consequence of her acting on what she was told. It was simply a consequence of the shock brought about by the news reported to her.

34. Wright J held, at pp 58-59, that a cause of action could be stated in law where a defendant has

“wilfully done an act calculated to cause physical harm to the plaintiff – that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her.”

He continued

“That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant.”

35. This compact statement of law contained a number of key features. First, he identified the plaintiff’s protected interest as her “legal right to personal safety”. Secondly, he identified the defendant’s act as wilful. Thirdly, he described the act as “calculated” to cause physical harm to the plaintiff. Fourthly, he noted the absence of any alleged justification. Fifthly, he characterised the “wilful injuria” as “in law malicious” despite the absence of any purpose (ie desire) to cause the harm which was caused. Having stated the law in that way, Wright J then considered whether it covered Mrs Wilkinson’s claim. He held that it did. He said:

“One question is whether the defendant’s act was so plainly calculated to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the defendant, regard being had to the fact that the effect was produced on a person proved to be in an ordinary state of health and mind. I think that it was. It is difficult to imagine that such a statement, made suddenly and with apparent seriousness, could fail to produce grave effects under the circumstances upon any but an exceptionally indifferent person, and therefore an intention to produce such an effect must be imputed …”

 

The discussion of the Supreme Court into this tort and partic ularly on the key ingredient ‘maliciously’ is wide-ranging –  covering level-crossings, horses ram-raiding into pubs, pretending to unmask someone as a German spy, and imputations of inchastity.  I was saddened that the promising case name of Mayor of Bradford v Pickles 1895 did not hinge on a gherkhin-related dispute, but rather on water supply…

Of course, you will note that in Wilkinson v Downton, the story that caused the harm was false, made up, whereas the story being told by Mr Rhodes is true. We shall see if that makes a noticeable difference.

72. The order made by the Court of Appeal was novel in two respects. The material which the appellant was banned from publishing was not deceptive or intimidatory but autobiographical; and the ban was principally directed, not to the substance of the autobiographical material, but to the vivid form of language used to communicate it. The appeal therefore raises important questions about freedom of speech and about the nature and limits of liability under Wilkinson v Downton.

73. In Wilkinson v Downton Wright J recognised that wilful infringement of the right to personal safety was a tort. It has three elements: a conduct element, a mental element and a consequence element. The issues in this case relate to the first and second elements. It is common ground that the consequence required for liability is physical harm or recognised psychiatric illness. In Wainwright v Home Office Lord Hoffmann discussed and left open (with expressions of caution) the question whether intentional causation of severe distress might be actionable, but no one in this case has suggested that it is.

 

When writing a book, the author is not obliged to consider that any reader of the book might be caused damage by reading it – that would make it almost impossible to write anything. The Court of Appeal had held that it was applicable in this case to consider that in writing the book, the child was a relevant person to take account of – i.e that he was a specific person who could be said to be affected by it.

 

74. The conduct element requires words or conduct directed towards the claimant for which there is no justification or reasonable excuse, and the burden of proof is on the claimant. We are concerned in this case with the curtailment of freedom of speech, which gives rise to its own particular considerations. We agree with the approach of the Court of Appeal in regarding the tort as confined to those towards whom the relevant words or conduct were directed, but they may be a group. A person who shouts “fire” in a cinema, when there is no fire, is addressing himself to the audience. In the present case the Court of Appeal treated the publication of the book as conduct directed towards the claimant and considered that the question of justification had therefore to be judged vis-à-vis him. In this respect we consider that they erred.

 

 

 

75. The book is for a wide audience and the question of justification has to be considered accordingly, not in relation to the claimant in isolation. In point of fact, the father’s case is that although the book is dedicated to the claimant, he would not expect him to see it until he is much older. Arden LJ said that the father could not be heard to say that he did not intend the book to reach the child, since it was dedicated to him and some parts of it are addressed to him. We have only found one passage addressed to him, which is in the acknowledgments, but more fundamentally we do not understand why the appellant may not be heard to say that the book is not intended for his eyes at this stage of his life. Arden LJ also held that there could be no justification for the publication if it was likely to cause psychiatric harm to him. That approach excluded consideration of the wider question of justification based on the legitimate interest of the defendant in telling his story to the world at large in the way in which he wishes to tell it, and the corresponding interest of the public in hearing his story.

76. When those factors are taken into account, as they must be, the only proper conclusion is that there is every justification for the publication. A person who has suffered in the way that the appellant has suffered, and has struggled to cope with the consequences of his suffering in the way that he has struggled, has the right to tell the world about it. And there is a corresponding public interest in others being able to listen to his life story in all its searing detail. Of course vulnerable children need to be protected as far as reasonably practicable from exposure to material which would harm them, but the right way of doing so is not to expand Wilkinson v Downton to ban the publication of a work of general interest. But in pointing out the general interest attaching to this publication, we do not mean to suggest that there needs to be some identifiable general interest in the subject matter of a publication for it to be justified within the meaning of Wilkinson v Downton.

 

As the Supreme Court point out here – Mr Rhodes case triumphs on the wider public interest of telling his story, but that does not mean that the story HAS to have that wider public interest to defeat a Wilkinson v Downton claim.

Where a story is true, they say, the law gives the freedom of someone to tell the truth a great deal of protection.

 

77. Freedom to report the truth is a basic right to which the law gives a very high level of protection. (See, for example,Napier v Pressdram Ltd [2009] EWCA Civ 443, [2010] 1 WLR 934, para 42.) It is difficult to envisage any circumstances in which speech which is not deceptive, threatening or possibly abusive, could give rise to liability in tort for wilful infringement of another’s right to personal safety. The right to report the truth is justification in itself. That is not to say that the right of disclosure is absolute, for a person may owe a duty to treat information as private or confidential. But there is no general law prohibiting the publication of facts which will cause distress to another, even if that is the person’s intention. The question whether (and, if so, in what circumstances) liability under Wilkinson v Downton might arise from words which are not deceptive or threatening, but are abusive, has not so far arisen and does not arise for consideration in this case.

 

It MIGHT be that a set of circumstances exist in which words in a publication are true, and not threatening, but are abusive and would cause harm to the recipient, but it is quite difficult to think of what those circumstances might be. It may be some time before we see another Wilkinson v Downton claim.

 

Finally, the Supreme Court looked at the mental element of the tort (the intent)

 

83. First, where a recognised psychiatric illness is the product of severe mental or emotional distress, a) is it necessary that the defendant should have intended to cause illness or b) is it sufficient that he intended to cause severe distress which in fact results in recognisable illness? Option b) is close to the version stated by Salmond & Heuston which attracted Lord Woolf in Wainwright v Home Office.

 

They concluded that option b was correct, and declined to develop the law to include ‘recklessness’ within the mental element of the offence.

89. In the present case there is no basis for supposing that the appellant has an actual intention to cause psychiatric harm or severe mental or emotional distress to the claimant.

 

Also hooray for Lord Neuberger’s remarks on free speech.

96. It is true that the book contained material which some people might find offensive, in terms of what was described and how it was expressed, but “free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence” – see Redmond-Bate v Director of Public Prosecutions (1999) 7 BHRC 375, para 20, per Sedley LJ. As he memorably added, “[f]reedom only to speak inoffensively is not worth having”.

97. Quite apart from this, it would, I think, be an inappropriate restriction on freedom of expression, an unacceptable form of judicial censorship, if a court could restrain publication of a book written by a defendant, whose contents could otherwise be freely promulgated, only refer in general and unobjectionable terms to the claimant, and are neither intended nor expected by the defendant to harm the claimant, simply because the claimant might suffer psychological harm if he got to read it (or extracts from it).

 

 

UN Convention on the Rights of the Child

I know that some of my commenters have been interested in this in the past, and in particular the curious half-way house that the UK finds itself in with the UN Convention.  We recognise it in our law, but don’t consider ourselves to be bound by it.  The Government has agreed to take it into account when formulating policy but there isn’t a cause of action that a person can take to Court to say “I think X has acted in breach of the UN Convention”

 

That came into very sharp focus in the Supreme Court’s decision as to whether the Government’s policy on a cap on welfare benefits was discriminatory and in contravention of the UN Convention on the Rights of the Child – since children of parents who were (a) on benefits and (b) had large families were going to find themselves poorer through no fault of their own.  Had the UN Convention been a formal part of English law, what was a knife-edge decision that the policy wasn’t discriminatory might easily have gone the other way.

 

[When I say knife-edge, I’m not kidding. It was 2-2, and the Judge who made the fifth judgment had gone the other way in his original decision, but changed his opinion when he saw the other draft judgments. It honestly could not have been closer]

 

See the excellent summary in UK Human Rights blog, which I couldn’t hope to match.

http://ukhumanrightsblog.com/2015/03/19/supreme-court-splits-the-baby-over-the-benefit-cap-mike-spencer/

 

And the other newsworthy item on the UN Convention is the Parliamentary report on the UK’s compliance with the UN Convention here :-

http://www.familylaw.co.uk/system/redactor_assets/documents/2799/UK_s_compliance_with_the_UN_Convention_on_the_Rights_of_the_Child.pdf

summarised very well by the people at Jordan’s Family Law here

http://www.familylaw.co.uk/news_and_comment/uk-s-commitment-to-children-s-rights-doesn-t-go-far-enough#.VRFUtfmsUXw

 

The Report also points to areas, such as immigration, legal aid and children in custody, where some policy developments have actually worked against the best interests of children, despite the Government’s specific commitment to the United Nations Convention on the Rights of the Child (UNCRC) made in December 2010.

The Committee expresses its disappointment that, during the current period of austerity, children – particularly disadvantaged children – have in certain areas suffered disproportionately, and concludes that the Government’s statutory duty to eliminate child poverty by 2020 should be treated as a human rights issue.

The Committee also states that the Government should move to ratify the Optional Protocol to the UNCRC which would allow children in the UK the right to individual petition to the UN Committee on the Rights of the Child in the same way that applies under the UN Convention on the Elimination of Discrimination Against Women and the UN Convention on the Rights of Persons with Disabilities.

 

 

 

Hounds of Justice – 500th post!

Obviously, I meant to do something weighty and serious for the 500th post. But as luck would have it, the marvellous Last Week Tonight gave me a much better post.

 

If you’re not familiar with Last Week Tonight, it’s a show on HBO (and Sky Atlantic) which is a satirical news show. It happens to be both the funniest and most thought-provoking show on tv, and tackles really hard hitting stuff in amongst the light nonsense.  It’s also presented by a geeky man in spectacles, so it is close to my heart in a number of ways.

 

On this week’s show, after presenting a hard-hitting piece on how mindless and stupid bureacracy has prevented translators in Iraq and Afghanistan who risked their lives to help US forces from taking up the US citizenships that they were promised, the show tackled the difficult issue of how the law can decide really very important things BUT it is really boring and dull to watch.

 

So, they took what was already a pretty funny case (is it Unconsitutional to ban prisoners from growing beards because they might hide tiny revolvers in them) and showed how you can present that in a gripping and televisual way.  By the way, if you are drinking coffee when watching this, I am not liable if it comes out of your nose.

 

 

 

They also kindly provided raw footage and material on line, so that people could take the actual audio tapes of any Supreme Court hearing and turn it into this style of presentation, and people are already putting major decisions up on You Tube.  NOW THAT’S WHAT I CALL TRANSPARENCY.

 

I CANNOT WAIT for the next UK Supreme Court decision….

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