17 August 2017

July 2017 - Public Law

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The importance of findings of fact being made in a timely manner

Wigan Metropolitan Borough Council V Ors [2016] EWFC 13

13 July 2017

The proceedings concerned a 3 year old boy who had been placed in foster care. The Local Authority had become involved because of the father assaulting the mother, which led her going to a refuge. 9 day fact finding was heard to determine whether the father posed as risk to the child or mother. The concerns were historic dating back to 1994

When the LA became involved with the family it was discovered that the father and his partner at the time had a baby girl A who died at the age of 10 weeks old. The death was a result of a head injury inflicted by one or other of her parents, and at post mortem A was found to have sustained a number of other serious injuries in the preceding weeks.  The parents were arrested and questioned.  The father was charged with murder, and spent some months in custody, but the charge was later dropped

A’s parents split up and her mother went on to have another child in 1995 by a different father. Proceedings were brought and this child was subject to a care order until 2001. The mother went on to have a third child in respect of whom nor proceedings were taken.

During the 1995 proceedings a great deal of thought was given to the possibility that the mother may have been responsible for her death. The father was not involved in these proceedings at all and neither the parties nor the court thought it necessary to establish the facts.

The questions that arise are: which parent was responsible, and did the other parent fail to protect?

As part of these proceedings Jackson J found that the father was responsible for A’s injuries and death.

Jackson J found that the mother of A did fail to protect, ‘but I go no further in blaming her than she blames herself.  She is filled with self-reproach for not leaving the father, but I consider that for her to have done so would have required more strength and determination she then possessed.’

Jackson J found the father to be completely incapable of taking responsibility for his actions. 

 

 

 

Application by an NHS Foundation Trust for an order to carry our treatment and investigations of a person lacking mental capacity

NHS Foundation Trust v QZ [2017] EWCOP 11

6 June 2017

QZ is a woman in her 60’s with a long standing diagnosis of chronic treatment resistant, paranoid schizophrenia. An application by a NHS Foundation Trust, seeking an order permitting a hysteroscopy and endometrial biopsy under general anaesthetic, with the objective of identifying the cause of a patient's postmenopausal bleeding. All agree that the patient lacks capacity to take decisions herself in respect of any treatment she may require. If the patient is found to have a cancerous tumour, or alternatively if the pathology is found to look significantly abnormal, then the permission of this court is sought to authorise an urgent keyhole hysterectomy under general anaesthetic.  This would have the wider impact of requiring the court to authorise and endorse the care plan filed by the Trust, which contemplates the removal of the patient from a residential unit and her transfer to hospital. 

The court heard evidence from Mr Abdul, a Consultant Gynaecological Oncologist and Laparoscopic and Robotic Surgeon.  Mr Abdul stated that the thickening of the lining of the womb is indicative of an increased risk of cancer. Dr Abdul evaluated the chances of QZ having cancer as between 30% and 50%. 

QZ is aware that she has the physical symptoms of vaginal bleeding.  She appears to understand the concept that she may have cancer, at least theoretically. QZ has a deep-seated long standing and entirely delusional belief that she is being poisoned by her carers or doctors and that she is at risk of being raped by them.  She profoundly believes that she has been sexually abused and/or raped in the past. her views are vigorously held and have endured over most of her adult life

In the time that she has been in this care home she has been happier and more settled than she has been at virtually any stage in her adult life. It was believed that any perceived breach of trust, if forced to do something that she did not want to do, might adversely affect her mental state.

The judge was referred to a number of authorities, in particular Aintree University Hospitals NHS Foundation Trust v James and others [2013] UKSC 67, Wye Valley Trust v B [2015] EWCOP 60M v Mrs N [2015] EWCOP 76 (Fam), and Briggs v Briggs & Ors [2016] EWCOP 53.  In considering the relevant factors, the Court should look at the question from the assumed point of view of QZ.  The judge focused on the leading judgment of Aintree v James.

The judge found that this is not a case where the ‘balance sheet’ approach was helpful because it did not accommodate the enormity of the conflicting principles which are conceptually divergent. The judge authorised the treatment proposed by the NHS Foundation Trust. The judge concluded that the medical intervention is of limited intrusion. QZ has shown the capacity to forge bonds of trust with professionals. She has developed resilience 'to fight back at some point in the future' and she has managed to live life in circumstances where she has a level of privacy, independence and dignity.  Each of these factors reveal facets of her personality.  They are just as much a part of who she is as are her paranoid and delusional beliefs which must not be permitted to eclipse them.  The prospect that following medical investigation and or treatment and a period of profound mental distress OZ may recover a life which has both happiness and dignity incorporated into it, is one which is very real. 

Unusually the judge did not name the Applicant Trust to prevent QZ from being identified. The treating clinicians and experts were named due to the public interest and transparency.

 

 

Appeal by father against care and placement orders on grounds of lack of adequate judicial reasoning for the orders.

Re N-S (Children) [2017] EWCA Civ 1121

25 July 2017

Appeal from orders made at the conclusion of a final hearing in public law proceedings, giving rise to two questions: 1. What is the extent of a judge’s responsibility to provide reasons in support of orders made at the conclusion of public law children proceedings? 2. Where there has been a failure to give reasons but there can be no challenge on appeal to the substantive orders made, what steps, if any, should the appellate court take to redress the lack of adequate reasoning?

Arrangements for the oldest 3 were agreed. The parents argued throughout that the youngest 4 should return to their care. The Local Authority sought care and placement orders which were made by the Judge.

Following the circulation of the draft judgment and observations being made by the Local Authority counsel as to the lack of reasoning set out in the judgment, HHJ Wilding handed down a judgment with some minor additions in an attempt to address the criticisms made.

Father appealed on the basis of a lack of reasoning although accepted that the substantial result could not be challenged. Father’s Counsel relied on the various authorities dealing with the need for judges to give adequate reasons and relied on the following areas of deficiency:

Analysis of why, in circumstances where these children could not be returned to their parents’ care, nothing but adoption “would do” in terms of meeting their welfare needs and thereby making it a requirement that the parents’ consent should be dispenses with (Re BS),

Consideration of long term fostering, as opposed to adoption, as an option for one or more of the children,

Justification for refusing all but indirect contact between the four children and their natural family after adoption.

The need for a judge to provide an adequate explanation of his or her analysis and the reasoning that supports the order that is to be made at the conclusion of a case relating to children is well established.

The balance in this case between the space afforded to a description of the factual evidence and an absence of any description of the judicial analysis is striking. The ground for criticism is therefore well justified.

There is a lesson to be learned in that, given the potential for child care proceedings to generate a range of side issues, it makes good sense for the advocates and court to be alive to those issues which can be addressed in judgment. Prudence would therefore suggest that a judge could cross check the conclusions against the list of issues and any self direction of law to ensure the conclusions touch ground with all of the requirements of the case.

Despite being persuaded as to the lack of adequate judicial reasoning, there was no overall error in the determination.

 


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