Monday, 3 December 2012

ANOTHER BLOGGERS RESPONSE TO THE APPEAL JUDGEMENT

It is lawful to make ICOs under repeated s37, I say it is lawful to make ICOs


A discussion of  RE K (Children) [2012] EWCA Civ 1549  which has just been decided in the Court of Appeal.


I previously blogged about the permission hearing here :-


 The issue turns on this – in private law proceedings, the Court have a power to direct a Local Authority to make enquiries as to whether it is necessary to issue care proceedings – this is generally done when the Court begins to be so worried about the child’s circumstances that the possibility of care proceedings becomes a live one. The investigation is called a section 37 report.

The Court also has a power to make an Interim Care Order at the same time as making a section 37 direction – that is an order that allows the LA, if they decide to, to remove the child. So it is a very serious order, particularly given that :-

(a)   The LA haven’t applied for it
(b)   The parents won’t have seen a threshold document or social work statement in advance of the hearing
(c)   When making the ICO, the Court does not necessarily know what the LA will do with it  (or what the care plan is, in other words)
(d)   That the parents will not have known when coming to Court that day that there was a prospect of the child being taken off either of them and put in care  [as opposed to an application in care proceedings, where the parents are given notice and sight of the case against them and an opportunity, though a short one, to respond]

And so, making an ICO under a section 37 direction is a big deal. A very big deal, for article 6 purposes.  [I would have hoped that the Court of Appeal might have emphasised these things more than they did. They might, for example, have drawn the parallel between the rightly high hurdle for an Emergency Protection Order, where the parents have limited time to respond or defend themselves, with an ICO made of the Court's own motion]

What this appeal turned on, was the vexed question of whether, if the LA do their investigation and say “We don’t need to issue care proceedings and don’t need an ICO” ,  the Court has power to make another section 37 direction and ANOTHER ICO.   [In effect, to make ICOs in an attempt to make the LA change their report and issue proceedings]

That’s what the Judge did in this case.

I was fully expecting the Court of Appeal to say that this was an abuse of process and goes further than the Act intends 

Unfortunately, from my perspective, and that of the appellants, the Court of Appeal thought otherwise, and that the Court can make an ICO under a further s37 direction even when faced with a s37 report that concludes that the LA have investigated and don’t propose to issue proceedings.

  1. In an appropriate case the jurisdiction in private law proceedings for the court to make a s 37 direction is an important and useful facility under which a local authority is required to investigate a child’s circumstances and required to consider issuing care proceedings. A private law case may last for a significant time and the circumstances of a child who is the subject of the proceedings may change. It would be wholly artificial to limit the court’s ability to utilise the s 37 jurisdiction to ‘one shot’ in each case. Nothing in the statutory language suggests that there is to be such a limitation on use. To the contrary, by s 37(1) the jurisdiction exists ‘where, in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made’. Circumstances sufficient to justify it appearing to the court that a public order may be appropriate may occur for a variety of reasons and at different stages during a single set of proceedings.
  1. In the present case, the judge made a series of s 37 directions arising out of the same factual context on the basis that the investigation conducted by the local authority was, on each occasion, unsatisfactory. As a matter of principle, and before turning to the facts of this case and the justification for the judge’s exercise of the jurisdiction in this case, it must be the case that where a judge is satisfied that the local authority has either simply not complied with an initial s 37 direction, or has conducted an investigation which fails to a significant degree to engage with the court’s concerns, the court has jurisdiction to extend or renew its s 37 direction. It will be a question in each case to determine whether such a course is justified. In approaching that question it will be necessary to bear very much in mind that the statutory structure is firmly weighted in favour of the local authority, which, alone, has the power to issue a public law application under CA 1989, s 31. InRe M (Intractable Contact Dispute: Interim Care Order) [2003] EWHC 1024 (Fam), Wall J underlined the statutory structure thus:
‘[The court] cannot require the local authority to take proceedings. The limit of [the court's power] is to direct the authority to undertake an investigation of the children’s circumstances.’ [paragraph 123]
  1. Having looked at the matters of principle raised by Mr Pressdee, and having determined that a court does have jurisdiction to make more than one s 37 direction during the currency of private law proceedings and has jurisdiction to extend or renew an earlier s 37 direction if the circumstances so justify, I now turn to look at the deployment of that jurisdiction by HHJ Tyzack in the present case.


Looking at the Act, there is nothing within it, or within case law that locks the Court into  one section 37 and one s37 ICO and one only, and that is how the Court of Appeal decided it.  But I respectfully think on the basis of natural justice, article 6 and proper process, it ought to have gone the other way.

For the avoidance of doubt, I think the decision is wrong, but not plainly wrong so that an appeal would succeed.

However, the Court of Appeal do say that where a Court does disagree with the s37 report and direct another one and make an ICO, it is incumbent on the Court to set out reasons.  [And that is why I don’t think they could be plainly wrong]

The Court of Appeal did say that if the ICO had been appealed at the time, the appeal would have succeeded, but this particular appeal was brought after the final Care Orders were made, the LA having yielded to strong judicial pressure and issued care proceedings





  1. Prior to the hearing on 4th March 2011, LCC had complied with the request for an addendum by filing a substantial 30 page report, which concluded that Tun should be returned to his mother’s care under a Family Assistance Order to LCC for a period of 12 months. The recommendation was based upon the level of cooperation between LCC and Mr and Mrs B that had by that stage been re-established. LCC was plain that it did not intend to make an application under CA 1989, s 31 for a care or supervision order.
  1. It has not been possible to obtain a transcript of the March 2011 judgment, but we have seen an attendance note of the hearing made by counsel for LCC and a note of the judgment prepared by Dr K’s counsel. LCC’s counsel seemingly met the jurisdictional issue head on by submitting to the judge that there were now no reasons that might justify making a further s 37 direction and therefore no jurisdiction to contemplate making a further interim care order. The judge apparently pointed to aspects of the report which gave rise to fresh concerns, in particular with regard to sanitation at the B’s home and the prospect that they might be evicted. He was also concerned that the social worker regarded it as acceptable for Tun to be left to protect himself from emotional harm by ‘developing strategies’ to cope with Mr B’s behaviour. These concerns are mirrored in the note of judgment which continues:
‘I am satisfied that it would not be right to act on what [the social worker] has said and I am not minded to discharge the ICO. I require the local authority to address the concerns of the father and the children’s guardian and the court on reading [this report]. I shall give [the social worker] 21 days to respond. I shall direct that input on behalf of the father and the guardian be put to [the social worker] within 14 days.’
On that basis the judge made a further s 37 direction for 21 days and a further 28 day interim care order.
  1. Mr Pressdee submits that the judge’s actions on the 4th March are in a different category from those at the earlier two hearings and that it is hard to avoid the conclusion that the judge, sitting in private law proceedings, was effectively dictating to a local authority and seeking to subvert the delineation of role, enshrined in CA 1989, which separates the local authority from the court. He also submits that the judge, once again, inverted the order of decision making by first determining that he was ‘not minded to discharge the interim care order’ before making the s 37 direction. Finally, Mr Pressdee argues that the judge totally failed to spell out in clear terms why the s 37 report was deficient; instead he delegated that role to the father and the guardian who were, over the course of 14 days, to indicate their concerns to LCC. In this context it is of note that the guardian had apparently departed on leave prior to seeing the March s 37 report and was not at the hearing. His views on the document were therefore not available to the judge at that time.
  1. Although a court has jurisdiction to make more than one s 37 direction in the course of proceedings, the exercise of that jurisdiction is to be considered at each turn with regard to the evidence that is then before the court and with regard to the firm weighting of the legislation in favour of the local authority being the determining body on the question of whether or not a child is to be the subject of care proceedings. In each case and at each hearing there will be a line beyond which the court may not go in deploying the facility provided by s 37 under which an interim care order may be made. Whilst the position of the line will vary in accordance with the particular circumstances of the case, the existence of the line and the need for the court to be aware of it should not be in doubt.
  1. By the 4th March the local authority had plainly discharged its duty under s 37 to investigate Tun’s circumstances, it had provided a comprehensive report of that process and had described the reasons for its considered and sustained opinion which was that it did not consider that a care or supervision order was justified at that time. On the evidence as it was at that hearing, making a further s 37 direction and, on the back of that, a further interim care order were steps that were clearly on the far side of the jurisdictional line delineating the role of the court from that of a local authority. In making these orders on that day the judge would seem to have failed to appreciate the limitation of his powers.
  1. In addition, where a local authority is presenting a considered position which is against the issue of care proceedings, it must be incumbent upon a court which holds a contrary view to spell that view out in clear terms and full detail in a reasoned judgment. In the circumstances, it was not sufficient simply to refer back to the December 2010 judgment and recite that the interim threshold had been satisfied at that time; it was, by March 2011, necessary to engage with the contrary view that was being firmly and consistently presented by LCC. The short judgment that was apparently given, and the delegation of the task of spelling out the suggested deficits in the local authority assessment to the father and children’s guardian were significant procedural errors.
  1. If this appeal were being heard during the currency of the 4th March 2011 order, rather than 18 months later, the s 37 direction and with it the interim care order would have to be set aside on the basis that the court had exceeded its jurisdiction in making them and had done so in a procedurally unsustainable manner.



On the broader issue of the appeal, that the Judge making the final decision about care orders had been biased, and in making his succession of ICOs under s37 he had effectively determined the need for care orders before considering the evidence as to whether they should be made, the Court of Appeal rejected this.

  • In the circumstances, Mr and Mrs B’s appeal must stand or fall upon the conclusion to be reached on their core assertion which is that the whole process before HHJ Tyzack was fatally tainted by unfairness and judicial bias against them. Their case is assisted by the conclusion at which I have already arrived to the effect that in making the March 2011 s 37 direction and a further interim care order the judge exceeded his jurisdiction. That conclusion is, however, the high point of their case on bias and unfairness. The conduct of the proceedings has to be looked at as a whole. From that perspective, for the reasons that I have given, I can detect no evidence of judicial bias or procedural unfairness. On the contrary the judgment of April 2011, the directions order of November 2011 and the full reasons given for the final decision in January 2012 indicate a judge who was looking to keep Mr and Mrs B on board in the process, should they choose to take part in it, and laying out clearly the factors that he was concerned about and in relation to which he would need to see evidence of change, should Mr and Mrs B wish to provide such. The actual decisions made by the judge were plainly profoundly unwelcome to Mr and Mrs B, but that that was the case is in not, of itself, any indication of judicial bias. In the present proceedings it would seem that Mr and Mrs B’s unilateral actions in withdrawing from cooperation with LCC and with the court at key stages contributed much to the way in which their claim to have Tun in their care became progressively less and less tenable. 
  • Having undertaken a thorough analysis of the process in this case, and despite having concluded that in March 2011 the judge exceeded his jurisdiction, I am fully satisfied that the proceedings as a whole were sound and free from judicial bias. If Mr and Mrs B had appealed the March 2011 interim care order at the time then, in my view, that appeal would have succeeded. They did not do so. Instead they withdrew from cooperation with a local authority, which hitherto had been supporting them to be Tun’s carers. Events moved on and now, some 18 months later, the finding of error in March 2011 is part of the history and cannot, of itself, lead to a finding that the judge’s final conclusion should be set aside with the result that the whole question of this young boy’s future should, once again, be considered afresh by the court. 
  • For the reasons that I have given I would dismiss this appeal.
 [Though I think the appellants had a point here, a Judge who is making repeated s37 ICOs is basically both the applicant and the tribunal determining the application, and it doesn’t sit well with me. I have no way of knowing, of course, whether it was the Judge or the LA who had looked at the case the wrong way, but it does not sit well with me that a Judge who had effectively midwifed the care proceedings into being then determines the outcome of those same proceedings.   It seems to me that whilst justice might well have been done, I'm not sure that it was seen to be done. I have a great deal of sympathy for these parents, who never really came to terms with what they genuinely perceived as unfair treatment, and lost their children as a result of their unwillingness to engage thereafter.  My personal view is that when the parents asked the Judge to recuse himself from the case, that ought to have happened.  Again, sadly, I don't think the Court of Appeal were plainly wrong on this. ]

Here’s the case, make up your own minds

ABOUT SUESSPICIOUSMINDS

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

One Response »

  1. Jerry Lonsdale 
    This seems not to make any logical sense, in order for Sec.38 orders the Threshold should be met, through applications and section 37′s L.A say no Judge says yes, I wonder if he is related to the Man from Delmonte, he had a habit of saying YES!!
    Reply

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“CAFCASS, are you keeping something from me, darling?"


“CAFCASS, are you keeping something from me, darling?"

Byron James, Barrister, of 14 Gray’s Inn Square considers the misunderstanding of CAFCASS's procedures, explained by the President in G v B [2010] EWHC 2630
Byron James, barrister, 14 Gray's Inn Square
Byron James, Barrister, 14 Gray's Inn Square
I am struggling to find an emoticon for this. Common parlance throughout the modern textually aware world is based more or less on three emotions: happy, sad and flirty winking.  Therefore in the emotional scenarios that exist beyond the colon (semi or otherwise), dash and open/close of a bracket we must find another way to say what we feel. How does one, for example, convey frustration? Or misunderstanding? This is important because, let's face it, these are both emotions commonly associated with those insisting on dealing with life through text messages and the like.  Perhaps something could be done with the eyebrows.

Misunderstanding and frustration are easily bred through close working relationships. This is especially so if the power balance is firmly in the other's favour. If someone holds all the cards and teases you, ultimately, you will end up frustrated, misreading into any given scenario either what you want to see, or, Freudianly (more Anna than Sigmund) projecting onto the said someone all the fears you secret away: "darling, all this time have you been keeping something from me?"

CAFCASS is a victim of the world we now inhabit; a world much similar to the Essex hairdresser: one full of cuts, often with garish abandon to what the thing will look like afterwards; yes, smiling, at first, until the magic of the platinum platitudes wear off and outlandish cuts just don't seem so cool anymore. In fact, CAFCASS has been a victim for some time. Despite being whacked around the knees by government and press, to the artificial construct of a world within the family court system they still manage to be crucial, fundamental, and they make recommendations that are so, so difficult to rebuff.

What happens then, when one arrives at court for a typical first appointment in a private law children application by father for parental responsibility and contact, to be told by the CAFCASS officer that you cannot see a risk assessment complied by them on behalf of the family. When pushed, they tell you that the reason you cannot see the document is because 'it did not meet quality assurance standards'. There is information which may or not be relevant, but it has been decided in the offices of CAFCASS that you may not see the same; worse, the decision has been made bureaucratically, away from court, without judicial determination of the same. This happened to the parties in G v B [2010] EWHC 2630 (Fam), a decision of the President.

The parties came to court on 15th July 2010 with, essentially, an agreed position: the father was having regular contact and his concerns regarding the mother's care of the child had been assuaged. Following the Private Law Programme, 'quite properly' according to the President, the district judge put the matter back 14 days to be heard in the 'CAFCASS list' so as to allow CAFCASS to provide a risk assessment. A different district judge heard the matter when it returned, only to be told that the risk assessment had been filed, even though it did not feature on the court file and the duty CAFCASS officer on the day did not have a copy. The matter was adjourned and the author of the purportedly filed report was directed to attend the next hearing.

At the next hearing, a risk assessment was produced by the CAFCASS officer on duty, authored by someone else. The author of the report had only been referred the case earlier that month. Within that risk assessment, there was reference to an earlier risk assessment having been completed in the month previous to the author being involved with the case. The district judge asked the CAFCASS officer on duty to provide the initial risk assessment, completed by a CAFCASS officer whom the district judge held in high regard. After instructions were taken by the CAFCASS officer on duty, the court was informed that the document had not been filed because "it did not meet quality assurance"

The district judge was concerned that the two risk assessments may have reached different conclusions and found that CAFCASS was withholding information from the court. The district judge's conclusion was set out by the President (at paragraph 10):
"[The District Judge] was thus of the view that [the first] risk assessment should be disclosed to the court in an un-redacted form. He gave four powerful reasons for reaching that view. They were: -
(1) that CAFCASS should hold no secrets from the court;
(2) that [the first CAFCASS Officer to report] had completed a risk assessment which should be disclosed under the PLP;
(3) that [the second CAFCASS officer to report] appeared to have placed reliance on [the first CAFCASS officer's] report in compiling her own report; and
(4) that if there was a material difference between [the two] report[s] it would have occurred as a result of the actions of a manager who would not be required to justify the evidence at court.
[the District Judge] then concludes his note by asking the rhetorical question: can any subsequent report issued by CAFCASS be trusted?"
The President found that what had transpired were 'two misapprehensions' (para 11):
"The first is that whereas [the first] risk assessment had been substantially completed on 2 September 2010; it was incomplete and had not been filed. The second, and more significant, is that [the] original and unredacted
report was not being relied upon by CAFCASS because it did not meet "quality assurance" standards, but because it was (a) incomplete; and (b) did not meet the terms of the Disclosure Protocol (the Protocol) reached between CAFCASS and the Association of Chief Police Officers (ACPO)."
Attending at court before the President was the Principal Lawyer with CAFCASS. He provided the President with 'the Protocol' which "in carrying out its safeguarding checks, information was provided by the police to CAFCASS pursuant to the Protocol, and that CAFCASS was under a duty to comply with the Data Protection Act 1998 whenever it processed sensitive personal information" (para 12). Therefore, CAFCASS received information on the police records but 'was unable to reproduce that information if it was not relevant to the child or children with whom CAFCASS was concerned' (Ibid). The two principles of 'the Protocol' were that data had to be processed fairly and lawfully and "that personal data was to be obtained only for one or more specified and lawful purposes and was not to be further processed in any manner incompatible with those purposes" (para 13).

It was then explained to the President that it 'was not open to disclose [the first] report because it contained information which went beyond what was permitted by the ACPO Protocol" (para 15). It was also acceded that the explanation referable to 'quality assurance' given before the district judge was 'misleading'.  An apology was given which  the President accepted.

Happy ending then: CAFCASS, the judiciary and the Bar all kissed and made up. It does however go to prove that often behind every misinterpreted gesture or regretted action, there is usually an explanation; sadly in life as much as in court there isn't always someone willing to listen and accept the apology.

C'est la vie. This case is important because it provides a peek behind the operating curtain of CAFCASS: the more one knows about the workings of the inner mind of a bedfellow, the less likely one is to leap to misunderstood conclusion.

The President finished by setting out an extract from 'the Protocol' which he hoped 'will prove useful to the profession in helping it and the judges who conduct hearings under the PLP to understand CAFCASS's safeguarding responsibilities, and the duties which they owe under the Protocol':
Disclosure Protocol with CAFCASS and CAFCASS CYMRU in Private Law Cases dated 2008
Guidance note for CAFCASS England
What CAFCASS staff can do
What is not permitted
Comments
Seek and receive information relating to the welfare of children on new private law cases as outlined in the Safeguarding Framework (2.13-2.25)
Information on third parties such as new partners without seeking specific written consent or permission of the court
Guidance on making a judgement as to whether or not to request a police check in private law applications is set out at 2.14 of the CAFCASS Safeguarding Framework
Ask the local authority to do the same in public law cases
Routine requests for police information without checking what information held in the local authority file
Seeking information routinely, will both overload the police and reduce the responsibility of the social worker responsible for the child and family. We are seeking to ensure that these checks are undertaken by the local authority before they initiate proceedings
Discuss this information with the party to whom it refers and the judge concerned; its is also permitted and often necessary to discuss any information relevant to the welfare of the child with the other parent or carers, subject to section 5 above
To give a copy of police documentation to any of the parties or their legal representatives

To discuss sensitive information about one party with another unless it relates to the child, subject to section 5 above
The police are rightly concerned with this sensitive information falling into the wrong hands
Refer in the report to any police information which is relevant to the child's welfare, subject to section 5 above
To attach a copy of the police documentation to the court report or refer in report to any information which is not relevant to the child.
As above – in addition it does not help the conflict between the parties to disclose convictions or incidents unless they are relevant to the child
Go back to the police if more information is needed – key to quote the original reference so time is not wasted on a fresh search from scratch

Care must be taken that we do not overuse what is a generally good service from the police
Disclose the information with the local authority Children 's Social Care service if there are urgent child protection issues or if they are preparing a Section 7 report and are willing to abide by the same disclosure rules as CAFCASS/CAFCASS CWMRU
Disclose the information to other agencies when there are no urgent child protection issues
The police are willing to accept that if the local authority is preparing a report then they should benefit from the initial checks undertaken by CAFCASS rather than start again with their enquiries provided they abide by the contents of this procedure

 


Dear profesional ? you know who you are

Dear profesional ?   you know who you are


The fact that you are watching this blog spells one word:

d-e-s-p-e-r-a-t-e  !!


I think this little obsession you have with us is somewhat worrying.  Maybe you should see an expert psychologists and make sure your not suffering from an attachment or detachment disorder.

Is it that you miss us so badly that you NEED to watch us all the time?  

I get it  -  your infatuated with us you cant stop reading what we have to say, you love to look at us don't you, in a strange kind of pervy way.  hiding behind your computers like a dirty little man. we feel your filthy beady eyes on us, we can imagine what your doing there on your own, flitting from our blog back to your child porn (for research only of course) back to our blog back to your child porn etc...   you sick old man

like all dirty pervy fucktards karma will get you in the end.  The day will come when i can spit on your grave -
 you know who you are im speaking to, i wont name you because I know you will wank yourself to the police - so i just say this :    the day you suffer some kind of life debilitating illness - is the day i will celebrate with a fucking party: in your road.  


the above is taken from an upcoming book about a family torn apart by social services.


Sunday, 2 December 2012

back to court it is then!!



back to court it is then, we lost our appeal, but won too...... strange though that sounds, the appeal left the situation like death on two legs, neither here nor there


AND OF COURSE THE SONG NAME IS APT FOR THE WAY IN WHICH ROSE LOOKS IN THE MORNING


the appeal judgement was at the end of the day disappointing but we have recharged and we are ready for round 2.  the fact is originally we only wanted one thing, for the appeal court to confirm we had been wronged by the judges Interim Care Order.  This they did, so we are quietly content so far. 

so its back to court, applying to discharge the boy from his evil monster special guardians, the drunks whom other children and ourselves affectionately nickname 'the Wests' for obvious reasons.  for parents they really are the bargain basement, you know : like a pound shop special offer.

we have to report sadly that the lad has got himself in to further trouble with the courts (remember he is 12) this time its Actual Bodily Harm, and a theft thrown in.  The monsters are said to put his behavior down to his time in our care.  Shame for them that the papers show the child in no trouble at all in our care.  

The grandfather (special Guardian) desperately rubbed his own daughters nose in her appeal loss...  poor old man does not understand their is a process of appeals, not simply one appeal.  the appeal we just had was about the judicial bias, we did not appeal the special guardianship order apparently according to the appeal judgement, so back to court we go, application to discharge the special guardians, then appeal again.  

the royal courts of justice better get used to us because we are going to be spending a bit of time there.  we will never give up.  

after this we have the supreme court and Europe.


WE KNOW YOU WATCHING FRED AND ROSE 

judicial independance: you cant take a judge to court


2  JUDICIAL INDEPENDENCE
2.1  Judicial independence is sometimes mistakenly perceived as a privilege enjoyed by judges,
whereas it is in fact a cornerstone of our system of government in a democratic society
and a safeguard of the freedom and rights of the citizen under the rule of law. The
judiciary, whether viewed as an entity or by its individual membership, is and must be
seen to be, independent of the legislative and executive arms of government. The
relationship between the judiciary and the other arms should be one of mutual respect,
each recognising the proper role of the others. Judges should always take care that their
conduct, official or private, does not undermine their institutional or individual
independence, or the public appearance of independence.
2.2  The judicial oath provides:
“I will do right to all manner of people after the laws and usages of this Realm, without
fear or favour, affection or ill-will.” In taking that oath, the judge has acknowledged that
he or she is primarily accountable to the law which he or she must administer.
2.3  The oath plainly involves a requirement to be alert to, and wary of, subtle and sometimes
not so subtle attempts to influence judges or to curry favour. Moreover, in the proper
discharge of duties, the judge must be immune to the effects of publicity, whether
favourable or unfavourable. That does not of course mean being immune to an awareness
of the profound effect judicial decisions may have, not only on the lives of people before
the court, but sometimes upon issues of great concern to the public, concerns which may
be expressed in the media.
2.4  Consultation with colleagues when points of difficulty arise is important in the
maintenance of standards. In performing judicial duties, however, the judge shall be
independent of judicial colleagues and solely responsible for his or her decisions.





the Honorable bbc






and getting away with it.  

Alps massacre survivors 'kidnapped by social services'


Alps massacre survivors 'kidnapped by social services'