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Totally radical, dude

"Put them in the Iron Maiden"

“Put them in the Iron Maiden”

 

The President has published guidance on radicalisation cases within the family Court, which you can find here:-

 

https://www.judiciary.gov.uk/wp-content/uploads/2015/10/pfd-guidance-radicalisation-cases.pdf

 

The Guidance says that ALL radicalisation cases are to be heard in the High Court, and that this specifically excludes Circuit Judges who have a section 9 ticket allowing them to sit as a High Court Judge. [UNLESS an actual High Court Judge explicitly releases an individual case to them]  The cases will purely be in the High Court.

To address the fact that this means that say, the family Judges in Luton would be oblivious to there being a major radicalisation problem in Luton because they won’t see any of the cases, the Designated Family Judge in each area must be notified of each application when they are made.

 

The guidance goes on

Judges hearing cases falling within the description in paragraph 1 above will wish to be alert to:

(a) the need to protect the Article 6 rights of all the parties;

(b) the fact that much of the information gathered by the police and other gencies will not be relevant to the issues before the court;

(c) the fact that some of the information gathered by the police and other gencies is highly sensitive and such that its disclosure may damage the public interest or even put lives at risk;

(d) the need to avoid inappropriately wide or inadequately defined requests for disclosure of information or documents by the police or other agencies;

(e) the need to avoid seeking disclosure from the police or other agencies of information or material which may be subject to PII, or the disclosure of which might compromise ongoing investigations, damage the public interest or put lives at risk, unless the judge is satisfied that such disclosure is “necessary to enable the court to resolve the proceedings justly” within the meaning given to those words when used in, for example, sections 32(5) and 38(7A) of the Children Act 1989 and section 13(6) of the Children and Families Act 2014;

(f) the need to safeguard the custody of, and in appropriate cases limit access to, any sensitive materials provided to the court  by the police or other agencies;

(g) the need to consider any PII issues and whether there is a need for a closed hearing or use of a special advocate;

(h) the need to safeguard the custody of, and in appropriate cases limit access to, (i) the tape or digital recordings of the proceedings or (ii) any transcripts;

(i) the need to ensure that the operational requirements of the police and other agencies are not inadvertently compromised or inhibited either because a child is a ward of court or because of any order made by the court;

(j) the assistance that may be gained if the police or other agencies are represented in court, including, in appropriate cases, by suitably expert counsel.

 

 

 

 

This is a major issue, or potential issue.  Imagine for a moment that the X family come to the attention of the Police or the intelligence services. They are believed to be radicalising their child. That would, when shared with the Local Authority, give rise to the need for care proceedings being initiated, and possibly that an application be made for the removal of that child.  But imagine that the REASON the police or intelligence services have that concern is that they are monitoring the phone calls, text messages or emails of Mr Y, someone who is recruiting for ISIS.  They may very well prefer that the X family don’t learn that Mr Y’s emails are compromised, and that hence Mr Y is alerted and changes his phone, and email account.   Suppose that the REASON is not monitoring emails but that Mr Y has a colleague in the terrorist cell,  Mr Z who is actually clandestinely working with the intelligence services – that really could be a matter of life and death if the X family learned that Mr Z was a spy. Both for Mr Z and for the future intelligence that might save lives whilst he remains undetected. This is big stuff.

 

[If you ever watched The Wire, you’ll be familiar of the constant battle with the police and drug dealers to get the information from the phone taps but without tipping the drug dealers hand to the fact that their communications are compromised, and thus that the drug dealers would ‘change up’ their systems. And if you have never watched The Wire, then I recommend that you remedy that. ]

 

"Omar comin' ! "

“Omar comin’ ! “

 

This puts the debate into really clear terms – if there’s information that is relevant to the proceedings – for example those representing the parents are likely to want to know exactly why the parents are suspected of radicalisation and what the evidence-base is, but it might impact on national security, then the Judge is going to have to ensure that the disclosure requests are very focussed, and that if there’s to be an argument that the documents should not be disclosed, that a proper Public Interest Immunity hearing takes place which balances the article 6 arguments in favour of disclosure with the national security PII arguments.

 

Because let’s not foreget, that parents in this situation are entitled to a fair trial. The allegations or information might be a mistake, or malicious, or mistaken identity.  We can’t lose sight of the fact that it is the State who have to prove that these parents have radicalised the child, not for the parents to prove their innocence.

Where this happens in crime, the Judge generally sees the documents in order to conduct what is called an “Air Canada” exercise, to consider them on a line by line basis to see what can be disclosed and what might have to be withheld. You cannot assume that article 6 will trump national security always or vice versa, it will be very case and fact specific.   Might this procedure even eventually extend to police or intelligence witnesses giving evidence behind closed doors, with the parents not hearing it?  How do we feel about that?

 

It is worth noting that in this guidance, when the phrase “Special Advocate” is used, it may not be simply meaning a ‘specialised’ or ‘specialist’ advocate, but rather that at the hearing where the documents are considered and arguments deployed, that the Court would appoint a barrister specifically to make those arguments on the parents behalf – NOT the ones representing the parents in care proceedings, and ones who would not have a duty to share that information with the parents.  That would be a very big deal in care proceedings. It is somewhat controversial generally, but as far as I’m aware, we haven’t done it in care proceedings before.  [I’m not absolutely sure that we can even do it without a statutory basis or a strong precedent that it can be done. But I’m no expert on the Special Advocate jurisprudence]

 

The guidance continues

 

11 This is a two-way process. The court can expect to continue to receive the assistance it has hitherto been given in these cases by the police and by other agencies. But there must be reciprocity.

12 The police and other agencies recognise the point made by Hayden J  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.”

The police and other agencies also recognise the point made by Bodey J that “it is no part of the functions of the Courts to act as investigators, or otherwise, on behalf of prosecuting authorities … or other public bodies.” But subject to those qualifications, it is important that the family justice system works together in cooperation with the criminal justice system to achieve the proper administration of justice in both jurisdictions, for the interests of the child are not the sole consideration. So the family courts should extend all proper assistance to those involved in the criminal justice system, for example, by disclosing materials from the family court proceedings into the criminal process.

13 In the same way, the police and other agencies will wish to be alert to the need of the court for early access to information, for example, information derived from examination of seized electronic equipment, so far as such information is relevant to the issues in the family proceedings. Accordingly, the court should be careful to identify with as much precision as possible in any order directed to the police or other agencies: the issues which arise in the family proceedings; the types of information it seeks; and the timetable set by the court for the family proceedings.

 

I have been worried about the balance between confidentiality and national security on the one hand and fairness and article 6 on the other for a long while in relation to radicalisation. I think that it is helpful to have published guidance as to the very difficult issues that Judges dealing with these cases are faced with.  How they will be dealt with in practice is something I’ll be very interested to read about (assuming that I’m allowed to)

IVF and declarations of paternity – major cock-ups in IVF clinics

 

I’m often a bit snippy about the President’s decisions in Human Fertilisation and Embryology Act cases, but I can’t fault him in this one.

 

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

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

 

This case involved eight cases where couples had made use of very well known and well regarded reputable fertility clinics within England, but as a result of mistakes in the clinics processes, found that not all of them had legal status with their own children and had to apply to Court for a Declaration of Parentage to resolve those issues.

The advocates involved were a roll-call of some of the best minds around, and one can see why.

This judgment relates to a number of cases where much joy but also, sadly, much misery has been caused by the medical brilliance, unhappily allied with the administrative incompetence, of various fertility clinics. The cases I have before me are, there is every reason to fear, only the small tip of a much larger problem.

 

The question of who, in law, is or are the parent(s) of a child born as a result of treatment carried out under this legislation – the issue which confronts me here – is dealt with in Part 2, sections 33-47, of the 2008 Act. It is, as a moment’s reflection will make obvious, a question of the most fundamental gravity and importance. What, after all, to any child, to any parent, never mind to future generations and indeed to society at large, can be more important, emotionally, psychologically, socially and legally, than the answer to the question: Who is my parent? Is this my child?

 

Why has this arisen?

 

  1. The decision of Cobb J on 24 May 2013 in AB v CD and the Z Fertility Clinic [2013] EWHC 1418 (Fam), [2013] 2 FLR 1357, brought to public attention and, more particularly, to the attention of the HFEA, the lamentable shortcomings in a clinic identified only as clinic Z which, in the judge’s view (para 74), had fallen “far short” of its obligations and which (para 88) had failed to comply with the conditions of the licence granted to it by the HFEA.
  2. I must return in due course to explain in more detail the relevant statutory requirements. For the moment I merely indicate two fundamental prerequisites to the acquisition of parenthood by the partner of a woman receiving such treatment. First, consents must be given in writing before the treatment, both by the woman and by her partner. The forms required for this in accordance with directions given by the HFEA are Form WP, to be completed by the woman, and Form PP, to be completed by her partner. Secondly, both the woman and her partner must be given adequate information and offered counselling.
  3. Following Cobb J’s judgment, the HFEA required all 109 licensed clinics to carry out an audit of their records. The alarming outcome was the discovery that no fewer than 51 clinics (46%) had discovered “anomalies” in their records: WP or PP forms absent from the records; WP or PP forms being completed or dated after the treatment had begun; incorrectly completed WP or PP forms (for example, forms not signed, not fully completed, completed by the wrong person or with missing pages); and absence of evidence of any offer of counselling. At the time of the hearing, I did not know how many cases there might be in all, how many families are affected and how many children there are whose parentage may be in issue – so far as I was aware the HFEA had never disclosed the full numbers – but it was clear (see below) that some clinics reported anomalies in more than one case. Since the hearing, the HFEA in a letter dated 1 September 2015 has indicated that there are a further 75 cases.
  4. As it happens, we are best informed about the St Bartholomew’s Hospital Centre for Reproductive Medicine, operated by Barts Health NHS Trust, which I shall refer to as Barts. It was the subject of a judgment given by Theis J on 13 February 2015: X v Y (St Bartholomew’s Hospital Centre for Reproductive Medicine Intervening) [2015] EWFC 13. Moreover, it has been commendably open and frank about its failings (others seem to have been more coy), sharing its findings with the wider medical community as long ago as September 2014 when, at the instigation of the HFEA, they were published on the HFEA’s clinicfocus e-newsletter. Of 184 patients who had undertaken fertility treatment with donor sperm since April 2009, when the 2008 Act was implemented, there were 13 cases (7%) where legal parenthood was in issue.
  5. The picture thus revealed, and I am referring not just to Barts, is alarming and shocking. This is, for very good reason, a medical sector which is subject to detailed statutory regulation and the oversight of a statutory regulator – the HFEA. The lamentable shortcomings in one clinic identified by Cobb J, which now have to be considered in the light of the deeply troubling picture revealed by the HFEA audit and by the facts of the cases before me, are, or should be, matters of great public concern. The picture revealed is one of what I do not shrink from describing as widespread incompetence across the sector on a scale which must raise questions as to the adequacy if not of the HFEA’s regulation then of the extent of its regulatory powers. That the incompetence to which I refer is, as I have already indicated, administrative rather than medical is only slight consolation, given the profound implications of the parenthood which in far too many cases has been thrown into doubt. This is a matter I shall return to at the end of this judgment.

 

All of these people put themselves in the hands of, as the President says, brilliant doctors, who brought them the gift of children, but also had put themselves in the hands of an administrative system upon which the entire notion of whether they were both legally that child’s parents. That administrative system did not always work.

As can be seen in this case, the wrong forms were sometimes used, forms were misplaced or lost.

For both of the couple to be legal parents, it is vital that before the treatment commences that the mother to be signs a form saying that she agrees and consents for the man to be the father in law of any child created, and that the father-to-be signs a form saying that he agrees and consents to be the father in law of any such child. That’s an essential component of the Act.  If there is no such written consent, then the man would not be in law the father.   [I’ve used mother and father for simplicity here – of course it is possible for two women to become parents under such an arrangement]

 

  1. The issues
  2. As will become apparent in due course, the cases before me raise three general issues of principle which it is convenient to address at this point.
  3. The first (which arises in Cases A, B, E, F and H) is whether it is permissible to prove by parol evidence that a Form WP or Form PP which cannot be found was in fact executed in a manner complying with Part 2 of the 2008 Act and whether, if that is permissible, and the finding is made, the fact that the form cannot be found prevents it being a valid consent, as involving a breach by the clinic of its record-keeping obligations. This was the issue decided by Theis J in X v Y (St Bartholomew’s Hospital Centre for Reproductive Medicine Intervening) [2015] EWFC 13. In the light of her decision, with which, as I have said, I respectfully agree, the only question in such a case is a question of fact: Allowing for the fact that it can no longer be found, is it established on the evidence that there was a Form WP or Form PP, as the case may be, which was properly completed and signed before the treatment began?
  4. The second issue (which arises in Cases D and F) is the extent to which errors in a completed Form WP or Form PP can be ‘corrected’, either as a matter of construction or by way of rectification. A similar point (which arises in Cases E and F) is the extent to which errors in a completed Form IC can be ‘corrected’ This is a novel point in this context which, in my judgment, falls to be decided in accordance with long-established and well-recognised principles.
  5. I start with rectification. As a matter of general principle, I can see no reason at all why a Form WP or Form PP should be said to be, of its nature, a document which cannot be rectified. The fact that it is a document required by statute to be in a particular form (that is, “in writing” and “signed by the person giving it”) is, in my judgment, neither here nor there: compare the many cases where rectification has been decreed of conveyancing or trust documents similarly required by various provisions of the Law of Property Act 1925 to be in a particular form. Nor does it matter, in my judgment, that a Form WP or Form PP is used as part of, and, indeed, in order to comply with the requirements of, a statutory scheme. There is, for example, nothing in the language of any of the relevant provisions of Part 2 of the 2008 Act to suggest that rectification is impermissible. Contrast, for example, the well established rule that the Articles of Association of a company will not be rectified because rectification would be inconsistent with the provisions of the Companies Acts: see Scott v Frank F Scott (London) Ltd [1940] Ch 794. So, in my judgment, if the criteria for rectification are otherwise established, a Form WP or a Form PP can be rectified.
  6. Quite apart from the equitable doctrine of rectification, the court can, as a matter of construction, ‘correct’ a mistake if (I put the matter generally, without any detailed exegesis) the mistake is obvious on the face of the document and it is plain what was meant. The reported examples of this are legion and stretch back over the centuries. They include cases of clear misnomer. Again, there is, in my judgment, no possible objection to the court taking this course in relation to a Form WP or a Form PP.
  7. The third issue (which arises in Cases A, C, D, E, F and H) is whether a properly completed Form IC is capable of operating as consent for the purposes of sections 37 and 44 of the 2008 Act

 

If you are wondering what ‘parol evidence’ is, then you are not alone. I wondered that too. Of course, if you all knew, then I was the only person wondering it, and now I feel bad.

 

Parol refers to verbal expressions or words. Verbal evidence, such as the testimony of a witness at trial.

In the context of contracts, deeds, wills, or other writings, parol evidence refers to extraneous evidence such as an oral agreement (a parol contract), or even a written agreement, that is not included in the relevant written document. The parol evidence rule is a principle that preserves the integrity of written documents or agreements by prohibiting the parties from attempting to alter the meaning of the written document through the use of prior and contemporaneous oral or written declarations that are not referenced in the document.  [In short, any other supplementary evidence that would allow a Court to decide that yes, both ‘parents’ did agree that each would be a legal parent to that child]

I am pleased to say that the President did conclude that in each of these cases, there was parol evidence that the couples had all gone into this arrangement fully consenting to the legal parentage of the child, and thus the deficiencies in the forms or the missing status of the forms could be remedied and the Declaration of Parentage made.

 

I conclude, therefore, that, in principle:

i) The court can act on parol evidence to establish that a Form WP or a Form PP which cannot be found was in fact properly completed and signed before the treatment began;

ii) The court can ‘correct’ mistakes in a Form WP or a Form PP either by rectification, where the requirements for that remedy are satisfied, or, where the mistake is obvious on the face of the document, by a process of construction without the need for rectification.

iii) A Form IC, if it is in the form of the Barts Form IC or the MFS Form IC as I have described them above, will, if properly completed and signed before the treatment began, meet the statutory requirements without the need for a Form WP or a Form PP.[2]

iv) It follows from this that the court has the same powers to ‘correct’ a Form IC as it would have to ‘correct’ a Form WP or a Form PP.

 

That, I’m sure came as a relief to the parents involved. I won’t dwell on the nuts and bolts of how the President reached that conclusion, but focus more on the human angle

 

 

  1. The evidence I listened to in these cases was some of the most powerful, the most moving and the most emotionally challenging I have ever heard as a judge. It told of the enormous joy, both for the woman and her partner, to discover, in some cases after a hitherto unsuccessful journey lasting years, that she was pregnant, having taken a pregnancy test that they had scarcely dared to hope might be positive; the immense joy of living through the pregnancy of what both thought of from the outset as “their” child; the intense joy when “their” child was born. In contrast, it told of the devastating emotions – the worry, the confusion, the anger, the misery, the uncertainty, the anguish, sometimes the utter despair – they felt when told that something was wrong about the parental consent forms, that, after all they had been through, all the joy and happiness, W’s partner might not legally be the parent. In one case, where the journey to a successful birth had taken the parents twelve years of what was described as grief and pain, it is hardly surprising to learn that they were “devastated and heartbroken” when told by the clinic that the mother’s partner was not the child’s parent. In another case, the comment was, “it is simply not fair.” The words may be understated, but the raw emotion is apparent. Another called the situation “terrible.” Another spoke of being “extremely distressed”, unable to sleep and “constantly worrying about the future.”
  2. It is testament to the enormous dignity they displayed, even while the case was going on and they did not know what the outcome was going to be, that these parents, despite their justified criticism of how they felt let down by professional people they had trusted and who they had thought, wrongly as it turned out, they could rely upon, did not give voice to greater anger and more strident criticism. It was, if they will permit me to say so, a humbling experience to watch them and hear them give evidence.
  3. A number of common themes emerge from the evidence. In each case, having regard to the evidence before me, both written and oral, I find as a fact that:i) The treatment which led to the birth of the child was embarked upon and carried through jointly and with full knowledge by both the woman (W) and her partner.

    ii) From the outset of that treatment, it was the intention of both W and her partner that her partner would be a legal parent of the child. Each was aware that this was a matter which, legally, required the signing by each of them of consent forms. Each of them believed that they had signed the relevant forms as legally required and, more generally, had done whatever was needed to ensure that they would both be parents.

    iii) From the moment when the pregnancy was confirmed, both W and her partner believed that her partner was the other parent of the child. That remained their belief when the child was born.

    iv) W and her partner, believing that they were entitled to, and acting in complete good faith, registered the birth of their child, as they believed the child to be, showing both of them on the birth certificate as the child’s parents, as they believed themselves to be.

    v) The first they knew that anything was or might be ‘wrong’ was when they were subsequently written to by the clinic.

    vi) The application to the court is wholeheartedly supported by the applicant’s partner or, as the case may be, ex-partner.

    vii) They do not see adoption as being a remotely acceptable remedy. The reasons for this will be obvious to anyone familiar with a number of recent authorities which there is no need for me to refer to. As it was put in the witness box by more than one of these parents, as they thought of themselves, why should I be expected to adopt my own child?

  4. There are two other matters which emerged clearly in the evidence. There is no suggestion that any consent given was not fully informed consent. Nor is there any suggestion of any failure or omission by any of the clinics in relation to the provision of information or counselling.

 

 

 

The President did consider that it was appropriate to name the clinics involved.

 

I can see no reason at all why the clinics should not be identified. So far as concerns IVF Hammersmith Limited, readers of this judgment will appreciate that the case has not yet been heard and that there are as yet no findings. Barts, MFS and BH, on the other hand, each stands exposed as guilty of serious shortcomings, indeed, at least in the case of Barts and MFS, repeated and systemic failings. Why, in the circumstances, should their shortcomings be shielded from public scrutiny or, indeed, public criticism? I can think of no compelling reason. On the contrary, if public condemnation serves to minimise the risk that any future parent is exposed to what these parents have had to suffer, then it is a price well worth paying. I have not identified any of their staff, nor any of the treating clinicians. There is no need, and it would be unfair, to do so, for the failings are systemic and, ultimately, the responsibility of senior management and the HFEA.

 

 

This was not, of course, a public enquiry into the failings of the clinics, or the regulatory body, but the President made some remarks aimed at preventing such problems in the future (though it seems that these 8 cases are likely to be followed by many, many more – at least another 65, that are known to have gone wrong).   The President here has thwarted my usual practice of putting the quotes from the judgment in bold, as he emboldens particular words for emphasis…

 

  1. An afterword
  2. It is not for me to provide guidance as to how these serious and systemic failings could better be prevented. That, after all, is the function of the HFEA and, within each clinic, the responsibility of the individual who is the “person responsible” within the meaning of section 17(1) of the 1990 Act. There are, however, three observations which I am driven to make in the light of the very detailed forensic examination to which these matters have been subjected during the hearing.
  3. The first relates to the material published from time to time by the HFEA in the aftermath of Cobb J’s judgment in AB v CD. I have in mind letters sent out by the Chief Executive of the HFEA dated 10 February 2014 and 1 September 2014, a letter sent out by the Chair of the HFEA dated 3 February 2015 and the April 2015 version of the HFEA’s Consent forms: a guide for clinic staff. While a careful reader who studies these documents with a critical and attentive mind ought not to be left in much doubt about the need to make sure that both Form WP and Form PP are completed properly, and at the right time, I cannot help thinking that it might be better if this FUNDAMENTALLY IMPORTANT requirement, and the potentially DIRE LEGAL CONSEQUENCES of non-compliance, were expressed in more emphatic, indeed stark, language and, in addition, highlighted by appropriate typography. By appropriate typography I mean the use of bold or italic type, CAPITAL letters, or a COMBINATION of all three; the use, for example, of red ink; and the flagging up of key points by the use of ‘warning’ or ‘alert’ symbols. To be fair, some effort has been made to highlight particular points, but I suggest that the process could go further.
  4. The second relates to the imperative need for all clinics to comply, meticulously and all times, with the HFEA’s guidance and directions, including, in particular, in relation to the use of Form WP and Form PP.
  5. The final observation relates to practice within clinics. A completed Form WP and a completed Form PP surely needs to be checked by one person (probably a member of the clinical team) and then re-checked by another person, entirely separate from the clinical team, whose sole function is to go through the document in minute detail and to draw attention to even the slightest non-compliance with the requirements – all this, of course, before the treatment starts. I trust that the parties will not be offended by the comparison, but the approach to checking that the Form WP and the Form PP have been fully and properly completed is surely just as important, and demands just as much care, attention and rigour, as would be demanded in the case of a legal document such as a contract for the sale of land, a conveyance or a will – indeed, in the context of parenthood, even more important.

 

Re-e-wind, when the crowd say Bo Selecta!

 

 

(I had to go back and google to make sure I hadn’t used this before as a title – I had not, but I had hankered after it here

 

https://suesspiciousminds.com/2013/11/25/rearrange-these-three-letters-f-w-t/           )

 

This case is Re M, not Re E, but is a case where the Court made a decision to re-e-wind the care proceedings.

 

Re M (a child) 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/71.html

 

The case was decided by the President of the Family Division, because it related to a failure of the Legal Aid Agency to provide public funding for the mother to be represented.

Here is the nub of it

 

  1. M was born in December 2011. A skeletal survey in July 2012 revealed a fracture of her arm. The local authority commenced care proceedings the same month (DO12C00164). A finding of fact hearing took place in the County Court before His Honour Judge Bond in December 2012. His judgment is dated 3 January 2013. He found that the fracture was inflicted “by either the mother or the father, the other parent failing to protect M” but that “it is not possible to determine which of the two parents was responsible.” The care proceedings concluded on 15 November 2013 when Judge Bond made a 12 month supervision order and a special guardianship order in favour of one of the mother’s relatives.
  2. On 11 July 2014 the mother made an application to the Family Court (BH14C00470) seeking “discharge of Supervision Order and Special Guardianship Order.” That concealed the true nature of the application. As set out in a skeleton argument dated 23 February 2015 prepared by her counsel, Ms Alison Grief QC, what the mother was seeking was a re-hearing of the finding of fact hearing because of what was said to be a breach of Article 6. Her case was that: i) New evidence demonstrated the full extent of the mother’s disability, rendering her a vulnerable adult.

    ii) The fact finding hearing was conducted without this vital information.

    iii) The integrity of the fact finding hearing was so significantly compromised as to amount to a breach of Article 6, thus necessitating a re-consideration.

  3. The application came before Judge Bond on 24 February 2015. It was opposed by the local authority. His judgment is dated 26 February 2015. He explained that he was concerned only with Stage 1 of the three-stage process explained in Re ZZ and others [2014] EWFC 9. He expressed his conclusion in this way:

    “Article 6 provides an absolute right to a fair trial. That right cannot be diluted. The findings that the court made as to the mother’s reliability as a witness were central to the finding as to her possible role as a perpetrator of M’s injuries. In the light of the information which is now available it cannot now be said that the mother did receive a fair trial in December 2012.

    I am therefore satisfied that she has provided solid grounds which satisfy Stage 1 of the Test.

    I therefore give the mother leave to re-open the fact find.”

    Judge Bond added that his decision “does not include any indication of the ultimate result of a re-hearing.”

  4. Given the way in which Judge Bond expressed himself and, importantly, the basis upon which he decided to re-open matters – the fact that, as he found, the mother had not had a fair trial – it is quite clear that the effect of his judgment is, as it were, to rewind the care proceedings, by which I mean the original care proceedings, DO12C00164, back to the point at which the finding of fact hearing was taking place in December 2012. In other words, this is not a case in which the application to set aside the supervision order and the special guardianship order is founded on some subsequent change of circumstance. It is founded on the fact – now established to the satisfaction of the original trial judge – that the mother was denied a fair trial of the original proceedings. In other words, the matter now before Judge Bond is not application BH14C00470; it is the substantive proceedings in DO12C00164.

 

The Legal Aid Agency had treated mother’s application for public funding as being an application to discharge the SGO, which would not get legal aid, rather than an application to be represented in care proceedings, which would.

 

It rather irks me that nobody took the simple solution here, which is – the final orders made in November 2013 are discharged  (on the basis that the hearing was not a fair trial),  and declare that the original application for care proceedings issued in 2012  is now a live application.   The Court could then go on to make either no order (if there is agreement that the child stay with grandparents whilst the matter is being determined) or an ICO (if there is no such agreement).

 

Of course, that is going to absolutely BATTER the Court statistics for that particular Court, since the care proceedings when they finally finish will have taken not 26 weeks, but something more like 150 weeks.

 

So the alternative is:-

 

  1. Discharge the existing orders
  2. Direct that the LA prepare a section 37 report  (which in effect will be their initial statement in fresh care proceedings)
  3. Make an ICO under the section 37 powers
  4. LA apply for fresh care proceedings, on the basis that if they do not, the child will return to mother’s care

 

Either of those solutions mean that the substantive litigation will be done under care proceedings, and thus the legal aid is mandatory non-means, non-merits for the mother.

 

But anyway, given that the case was before the President, what could be done instead is the muscle-flexing don’t mess with the President approach

  1. It may be that the Legal Aid Agency was given inadequate information as to the nature of the proceedings now before Judge Bond, but in my judgment, what is now before Judge Bond – which, to repeat, is the original care proceedings DO12C00164 – is plainly a “special Children Act 1989 case” in relation to which the mother is entitled to legal aid in accordance with paragraph 2 of the Regulations.
  2. There is, therefore, no need for me to consider whether the mother is entitled to look to any other source of funding. It was common ground before me that the effect of the recent decision of the Court of Appeal in Re K and H (Children) [2015] EWCA Civ 543, is to preclude the making of any order against Her Majesty’s Courts & Tribunals Service. Had the need arisen, Mr Tughan would have pressed for an order again the local authority, relying for this purpose on what I said in Re D (A Child) [2014] EWFC 39, para 35. That, unsurprisingly, is an order that Mr Nother made clear his clients would resist.
  3. I trust that the Legal Aid Agency will now be able to move with appropriate speed to ensure that the mother has legal aid for the next and subsequent hearings before Judge Bond.
  4. I make the following order:

    “Upon reading the judgment of His Honour Judge Bond dated 26 February 2015 and the orders subsequently made by Judge Bond

    It is declared that (a) the effect of that judgment is to re-open the proceedings DO12C00164 under section 31 of the Children Act 1989 (b) future hearings before Judge Bond will be of the proceedings DO12C00164 and (c) the ongoing proceedings before Judge Bond are accordingly a “special Children Act 1989 case” within the meaning of paragraph 2 of The Civil Legal Aid (Merits Criteria) Regulations 2013, SI 2013/104.”

 

It is not at all clear to me how everyone in the original set of proceedings missed mother’s learning difficulties, thus leading to an unfair trial, but it happened.  Perhaps the State shouldn’t now compound that injustice by failing to give her the free legal advice and representation that she’s entitled to.

 

 

Adoption rates in freefall

I’ve been asked if I would write about the story in the newspapers this week about adoption rates going down and the blame being placed on some high profile case law decisions. This is the first time that I have ever received a request, so I should oblige.  [If anyone’s future request is that I write about my love of Jaime Lannister, or that Joe Hill’s Locke and Key is the best comic series since Grant Morrison’s run on Doom Patrol, then for those, it’s on like Donkey Kong]

 

The Painting that Ate Paris (Doom Patrol)

The Painting that Ate Paris (Doom Patrol)

 

Locke and Key - this is what happens when you use the Head key to look inside your own mind

Locke and Key – this is what happens when you use the Head key to look inside your own mind

 

 

So, here is the Independent piece – there’s a startlingly similar one in the The Times, but you need to pay Rupert Murdoch money to look at it. The choice is yours.

http://www.independent.co.uk/news/uk/home-news/adoption-rates-in-freefall-after-court-ruling-leaves-children-languishing-in-unsuitable-homes-10245614.html

 

This piece is very knowledgeable about family law and case law – more than you’d expect from a journalist. The fact that two newspaper articles with the same cases turned up this week makes me suspect a press release was involved.  The same piece appears on the BBC website.

 

Let’s have a look at it bit by bit.

The number of children being put forward for adoption has plummeted over the past year following a series of court rulings that have left local authorities frightened of removing them from birth families.

Child welfare experts are worried the decline will mean more children suffering in unsuitable and unsafe homes. It also means agonising delays for parents approved for adoption who now find no children are available.

The number of children signed off for adoption fell from 1,550 in the summer quarter of 2013 to 780 in the same period last year, down almost 50 per cent.  

 

Okay, well firstly, whilst one feels for an adopter who is waiting for a child, the family justice system isn’t, and shouldn’t be, prioritised to deliver children to adopters. The idea is that the family justice system tests fairly whether a parent can be helped to care for their child, with adoption being the last resort. Secondly, “Signed off for adoption” is not only a very ugly expression, it is hard to put a proper meaning on it. Does it mean “The Agency Decision maker decides that adoption is the plan the social worker should recommend to the Court”?  or does it mean “A Placement Order is made”?

As the Department for Education hasn’t published (yet) the statistics that is getting all of these newspapers up in arms, it is a bit difficult to tell. The thrust of the article suggests that the drop in figures is that Local Authorities are too scared to ask for adoption, so the assumption is that the drop here is in the number of APPLICATIONS for Placement Orders (i.e a social worker recommending to the Agency Decision Maker that adoption should be the plan and the ADM agreeing) – that in itself could be that social workers are asking the Agency Decision Maker less often, or that the Agency Decision Maker is saying no more often, or both.

That in turn could be because the thrust of the Re B, Re B-S et al decisions made social workers look harder and more carefully at whether adoption really was the right plan for a child – could more be done to support a parent, could those grandparents who are not ideal be good enough? Really hard to guage that from statistics – you’d need to have a look at a pile of actual cases and compare the sort of cases that were ending up with adoption in 2013 that are now ending up with parents or grandparents.  It is also difficult to know whether that’s a bad thing anyway. If the trend is to be more willing to work with parents or grandparents who are not perfect, but could be helped to be good enough, that could be a perfectly laudable aim. We might not know whether that greater willingness to give things a try was a long overdue adjustment or a bad mistake for a few years – the real test will be whether those attempts broke down.  At the moment, we can’t even tell if that’s what happened.

Certainly Local Authorities aren’t taking any less care proceedings than they used to. The latest CAFCASS statistics show that the number of applications is continuing to go up – 18% up on this time last year.

I honestly don’t think, and the recent clarifications from the Court of Appeal make this clear, that the caselaw ever meant that children should be “suffering in unsuitable and unsafe homes”. If the Court considers that the alternatives to adoption are unsuitable and unsafe, then adoption is going to be the outcome. Nothing has changed there. I also don’t think that social workers have decided to leave children “suffering in unsuitable and unsafe homes” as a result of Re B, Re B-S et al, rather than asking for adoption as the plan. What might have changed is that it is no longer enough to just assert that an alternative is ‘unsuitable’, but you have to evidence it. I don’t consider that a bad thing.

 

Next

But in November 2013 the President of the Family Court, Sir James Munby, made a ruling that left many local authorities convinced they must try every extended family member before putting a child up for adoption. The judge said that six-month targets for adoptions should not be allowed to break up families unnecessarily and that grandparents and other extended family members should be considered before placing children for adoption.

It had been hoped that a second ruling last December from the same judge, clarifying he had not changed the law in the original judgment, would curb the freefall in adoption numbers. But instead further rulings from Sir James and other judges have exacerbated the problem.

 

The first case is Re B-S  – and you can read my post about that case here https://suesspiciousminds.com/2013/09/17/this-is-some-serious-b-s/    – it was undoubtedly a big case, telling social workers, Guardians AND Judges that decision-making on adoption cases had gotten very sloppy and that the argument to justify making such a serious order needed to be clearer, stronger and more analytical. It was no longer enough to parrot stock phrases about why a child needed to be adopted – a proper comparison of the pros and cons of EACH option tailored for the individual child needed to take place. It is really hard to see much wrong with Re B-S. If anything, it should have been said years earlier. There’s nothing in it to suggest that a Court should leave a child ‘suffering in an unsafe and unsuitable home’

 

The scond case is Re R – and you can read my post about that case here https://suesspiciousminds.com/2014/12/18/re-r-is-b-s-dead/  – that clarifies that some of the more outlandish claims that lawyers had pushed to extremes about Re B-S – that it was a “climb every mountain, ford every stream, follow every river – before you make a Placement Order” case was not right, but that everything I just said above was still right, and the Supreme Court’s formulation that “the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do.”  was still bang on right.

 

Next – let’s have a look at these further confusing rulings

In January Sir James granted an appeal in a case in Liverpool where three children were taken away from a mother with a history of drug and alcohol abuse who was given no opportunity to prepare a case.

The President of the Family Court ruled that the “ruthlessly truncated process” employed by the earlier judge in the case – who had admitted he was motivated by a desire to embrace family justice reforms designed to encourage adoption – was “unprincipled and unfair”.

 

Well, that’s the His Honour Judge Dodds case, where he made Care Orders at the very first hearing (i.e in week one) in order to beat the week 26 target, even though nobody in the case had asked him to do that and there was no final evidence filed by anyone. That’s not a warning to Judges not to make adoption orders – that’s basic common sense that a Judge who behaves in a way that is utterly unfair is going to get overruled. Nobody with any common sense looked at that case and felt that it had worrying implications for adoption cases, or that it meant that children should be ‘suffering in unsuitable and unsafe homes” –  If you read this piece and think “Well, I don’t know why the Court of Appeal had any problem with what the Judge did” then I’m not sure I can help you. https://suesspiciousminds.com/2015/02/02/sentence-first-verdict-afterwards/

 

What’s the next ‘confusing’ ruling?  (I wasn’t in any way confused by the last one) – this one apparently had a “similar chilling effect on Local Authorities desire to expedite adoption cases” as the His Honour Judge Dodds one did.  (not that it should have done – the Dodds one wasn’t even about adoption)

 

Another case decided in January is understood to have had a similar chilling effect on local authorities’ desire to expedite adoption cases. Mr Justice Keehan ruled that Northamptonshire County Council had made “egregious failures” in its handling of the case of a baby taken into care without proper assessments of the mother or the maternal grandparents in Latvia. The baby was eventually placed with his maternal grandparents.

I wrote about that one too – you may pick up a slightly different tone from the title of the piece https://suesspiciousminds.com/2015/02/03/unfortunate-and-woeful-local-authority-failings/

This was just an old-fashioned Local Authority f**k-up. Sorry to anyone involved, but that’s what it was. This wasn’t a case where Local Authorities read it and it had a chilling effect on them, making them think “gosh, if social workers are getting told off for this exemplary work, then we may as well pack it in and let children suffer in unsuitable and unsafe homes” – it was one that you read and thought “If you f**ked up as royally as that, you are going to get the judicial ass-whupping that they got”.   There’s nothing in that case that would make anyone think “well, I really think in my heart of hearts that this child should be adopted, but because the law has done something weird and stupid, I guess I’ll have to leave the child to suffer in an unsuitable and unsafe home”

[Yes, I’m hammering home that phrase, because I think it is seriously misleading]

If there are Local Authorities, or social workers (and I really doubt it) that took the His Honour Judge Dodds decision and the Northamptonshire decision and interpreted them as ‘adoption is even harder to get now’  rather than ‘if you really screw something up, expect not to get away with it” then these articles are doing a great public service in correcting that total misapprehension and interpretation of the law.

Anything else?

 

No, there are no other “chilling” or “confusing” cases cited.  That’s a shame, because one could make a case for the President’s decision in Re A fits the bill far better than the two examples they have chosen.  https://suesspiciousminds.com/2015/02/17/a-tottering-edifice-built-on-inadequate-foundations/

 

For a start, it is a case where a Local Authority asked for adoption and didn’t get it – and walked away with nothing but a flea in their ear. More than that, it is a case where what looked like perfectly decent threshold criteria (the concerns that a Local Authority have to prove exist in order to get an order) was torn to bits by the Judge. And finally, it had principles and issues which affected all cases, not just the particular one being decided (unlike the two examples that were used), and there is a distinct possibility that that bar was raised, making Care Orders (and hence indirectly Placement Orders and hence adoptions) more difficult to obtain, since it is now harder to prove that the threshold is met.

But once again, the law is not saying that children ought to suffer in unsuitable and unsafe homes. It is saying that where a Local Authority says that a child should live somewhere else, they need to produce proper evidence and analysis to show WHY their home would be unsuitable and unsafe. Re B-S and Re A are not saying that adoption isn’t the right outcome for some children, but they are saying that where the State (whether that be a social worker or a Judge) is taking a child permanently away from a parent, the least that society can expect is that they both work very hard and have proper evidence and reasons for why that has to happen.

Perhaps when the stats do come out, the adoption figures really will have ‘fallen off a cliff’, just as the article claims.  Perhaps that is because social workers, lawyers, Agency Decision Makers and Judges are paralysed by chilling and confusing case law. But it might be that the numbers were too high before, and proper scrutiny of the evidence and proper analysis of what is really involved has meant that we aren’t placing children for adoption unless the proper tests are met.

 

Sometimes, an initial look at something can make you chilled and scared, and even want to throw stones. But a longer more detailed careful consideration can make you realise that Jaime Lannister kicks ass y’all, and that a Lannister always pays his debts.

 

Plus, he has a gold hand. A hand made of gold. What's not to like?

Plus, he has a gold hand. A hand made of gold. What’s not to like?