Costs orders against local authorities in private law proceedings

A High Court Judge has taken the unusual step of ordering a local authority to pay a parent’s legal costs. 

The Judge, Mr Justice Cobb was considering a case concerning a six-year-old boy.  There was a dispute between his parents about questions of residence and contact – where he should live and the time she should spend with the parent with whom he did not live.

The father raised concerns about aspects of the mother’s behaviour:  in short that she had fabricated serious medical conditions in both herself and the child. 

The exaggeration or creation of symptoms of illness to gain investigation, treatment, attention, sympathy, and comfort is a recognised and serious psychiatric disorder.  It used to be called Münchausen syndrome.  The related condition was termed Münchausen syndrome by proxy, a particularly insidious form of abuse where the abuser seeks attention or sympathy by fabricating or inducing illness in a child.  The label “Münchausen” has fallen out of favour and the expressions “factitious disorder” or “fabricated illness” (by proxy, if it involves the abuse of a third-party) are preferred. 

 

Because of the serious nature of the father’s concerns, the local authority was directed by the court to prepare a report under section 37 of the Children Act 1989.  That section enables a court to direct a local authority to prepare a report if it considers that it may be appropriate for the State to intervene – either via a care or supervision order – in the child’s family life and upbringing.

And so a section 37 report was prepared.  Unfortunately, it failed to address in any meaningful way the serious issues raised in the case.  There was limited analysis of the fabricated illness and how that might impact on the care the mother provided to the child.  

 

The social worker who wrote the section 37 report, and her manager, subsequently gave evidence to the court.  During that evidence, it emerged that:

Ø                 the social worker had no training in relation to cases of fabricated illness;

Ø               she was not aware of guidance on the issue produced by the Department for     Children, Schools and Families in 2008 (“the DCSF Guidance”);

Ø             she was not aware of a programme for training social workers in dealing with fabricated illness cases recommended in the DCSF Guidance;

Ø              she had not spoken to the child’s GP or made enquiries of his school regarding his health;

Ø               she had not spoken to extended family members;

Ø               she was untroubled that the child’s attendance record at school was 69.4%, indicating she considered this to be “ok”.

When the deficiencies in the social worker’s and the local authority’s approaches emerged in evidence, the local authority asked for an opportunity to reflect overnight.  Having done so, the local authority Team Leader asked for an opportunity to “re-assess the situation”.  The local authority indicated it wished to hold a legal planning meeting – which it could have done in the many months leading up to the trial – urgently to consider the case.

It was agreed that the hearing could not proceed in those circumstances, and was aborted.

A further section 37 report was prepared and filed, and the issues were decided at a later date.

The question Mr Justice Cobb had to decide was who ought to pay the costs of the first trial, which had to be aborted on account of the local authority’s deficient approach. 

His Lordship looked at the relevant legislation about costs, the corresponding court rules and previous decisions interpreting both.  As a general rule, costs are in the discretion of the court.  The court may make at any time such order as to costs as it thinks just.

The Judge identified the appropriate test as being whether, in all of the circumstances, it was just to make a non-party pay the costs of proceedings.  He identified the following extract from an earlier case about applying that test to be of relevance: 

“In such cases it will be a matter for judgment and the exercise by the judge of his discretion to decide whether the circumstances relied on are such as to make it just to order some non-party to pay the costs.  Thus, as it seems to me, the exceptional case is one to be recognised by comparison with the ordinary run of cases not defined in advance by reference to any further characteristic"

Globe Equities Ltd –v- Globe Legal Services Ltd [1999] BLR 232 at § 21, per Morritt LJ

The Judge decided it was appropriate to make an order against the local authority to pay the father’s wasted costs of the abortive trial.  His Lordship was sympathetic to cases where minor failures in practice occurred, because of under-resourcing of local authorities.  Such cases would not attract financial penalty.  However, the failures here were not minor; the Judge described them as extensive.  They had had a profound effect on the conduct of the proceedings.  He said (at paragraph 52):   

“The Local Authority has in my judgment failed fundamentally to investigate, address, or analyse the serious issues in the case raised by the father's allegations when it prepared its section 37”

The Judge further was sympathetic to the lack of training on the part of the individual social worker, which could only be acquired over time and professional practice.  The failure justifying the costs order was a systemic one on the part of the local authority.  There was simply no training of social workers in the assessment and management of fabricated illness cases. 

The local authority’s hard-pressed financial resources did not exculpate it from its statutory responsibility.  This was not least given that the father was himself a man of limited means who could not afford the wasted costs of the abortive trial. 

His Lordship was fortified in his conclusion by reference to earlier decisions where costs orders were made against non-party expert witnesses who had caused significant expense to be incurred through disregard of their professional obligations.

The local authority was ordered to pay just over £10,000, a sum the Judge described as “relatively modest by the standards of some High Court family litigation”.

As a coda to the main Judgment, it is of interest that the Judge found the majority of the father’s allegations against the mother, regarding fabricated illness and fabricated illness by proxy, proved. 

And so a cautionary lesson for experts – which the President has been at pains to remind us in recent diktats includes social workers - in family proceedings.  Ignore your professional responsibilities at your peril.  There is of course a wider policy issue here:  doubtless many of the shortcomings of the local authority are a direct result of scandalous and continuing underfunding.  It is very easy to cut the Family Justice budget to the bone and pretend it will all be okay and that stakeholders will just muddle along and make do.  This decision demonstrates the fallacy of that line of thinking.  Making local authorities meet the financial consequences of central government funding cuts might just make the latter sit up and take notice.  Decisions like this speak the only language – a rudimentary monetary one – they seem to hear.  

The kids are alright? The behavioural health of children born through surrogacy

Children born using surrogacy may face greater adjustment problems than their peers. 

This seems to be the conclusion of a longitudinal study conducted by Professor Susan Golombok, of the Centre for Family Research at Cambridge University. 

Writing in June’s issue of Journal of Child Psychology and Psychiatry, Professor Golombok observed:   

“Surrogacy children showed higher levels of adjustment problems than children conceived by gamete donation at age 7. 

“Signs of adjustment problems could be behaviour problems, such as aggressive or antisocial behaviour, or emotional problems, such as anxiety or depression.”

The research was more positive about other types of assisted reproduction, including IVF with donated eggs and sperm.

The sample breakdown for Professor Golombok's study

The study involved thirty families who had used a surrogate, thirty-one who had used egg donation, thirty-five who had used donor sperm, and fifty-three who had conceived naturally.

Professor Golombok acknowledged that the results had some limitations because of the relatively small sample size.  She also conceded it was possible that reproductive donation mothers might have skimmed over some of their children’s difficulties.

Parenting was assessed at age three by a standardised interview and by questionnaire measures of anxiety, depression, and marital quality.  The children’s adjustment was assessed at ages 3, 7, and 10 using a Strengths and Difficulties Questionnaire (SDQ).

 

The study found that candour and openness about the mechanism of their conception did not necessarily make the children’s lives easier, at least at age 7.  Parents who had kept their child’s origins secret showed elevated levels of distress.  However, maternal distress had a more negative impact on children who were aware of their origins.

Remarking on this, Professor Golombok said: 

“… contrary to expectations, it was children who were aware of the circumstances of their birth and whose mothers were distressed who showed greater adjustment difficulties, conceivably because they felt less secure when faced with their mother’s emotional problems.”

She concluded that “the absence of a gestational connection between parents and their child may be more problematic for children than the absence of a genetic relationship.” 

As surrogacy becomes increasingly popular as an alternative for parents unable to conceive naturally, studies like Professor Golombok’s will prove vital to ensure that the particular needs of the children born are identified and properly met.

International Surrogacy - Is a global response achievable?

A report published this week examines the legal structures relating to surrogacy across the EU Membership.

The report, commissioned by the European Parliament, was written by academics from the Université Paris, the University of Glasgow and the LSE.

It is a compendious document, weighing in at over 380 pages.  Much of that consists of an analysis of surrogacy law and practice in jurisdictions around the globe:  Australia, Belgium, Bulgaria, Germany, Greece, Italy, the Netherlands, Romania, Russia, South Africa and Spain.

A harmonised approach to surrogacy within the EU Membership looks still to be some way off.  In many EU Member States, surrogacy is illegal.  In others, there is no legal provision for it.  The report’s authors conclude that a principal aim of any EU response should be to go beyond dispute management and manage surrogacy as an international practice.  It should provide certainty on the legal parenthood of the child and his or her entitlement to move to and settle in the home country of the commissioning parents.

One of the key problems with the reform of surrogacy is that there is only limited data available about the phenomenon.  The report recommends that   improved systems be put in place routinely to record relevant information about surrogacy arrangements and outcomes across all countries.

Surrogacy is in fact on the agenda on a broader scale.  It is an issue that the Hague Conference on Private International Law is currently considering.  Whilst the EU (self-evidently) is limited to the twenty-eight Member States in Europe, the Hague Conference has global application.  One needs to look no further than the success of the 1980 Hague Abduction Convention for an example of just how effective some of the treaties emanating from the Conference have been in managing issues affecting families internationally.  That particular Convention now operates as between some eighty Contracting States, a number set soon to increase once Japan and others come on board.

In 2011, the Council on General Affairs and Policy of the Hague Conference invited the Permanent Bureau to intensify its work on the private international law issues surrounding the status of children, with emphasis on the broad range of issues arising from international surrogacy arrangements.

In 2012, the Council asked the Permanent Bureau to continue the current work under the 2011 mandate and further prepare and distribute a Questionnaire in order to obtain more detailed information regarding the extent and nature of the issues being encountered in relation to international surrogacy arrangements.  The Permanent Bureau will present its final Report to the Council in 2014.

As identified in the EU study, empirical data is key.  The Permanent Bureau of the Hague Conference is looking for input from those who have been involved in international surrogacy arrangements, either in a personal or professional capacity.  Those with experience of such arrangements should contact the Permanent Bureau to ensure that the Report is as comprehensive as possible when presented next year. 

The Permanent Bureau is particularly seeking information from legal professionals with relevant practical experience in this field at an international level.  A Questionnaire directed to such individuals has been prepared and can be completed online.  Responses close at the end of September 2013, in order to allow the Permanent Bureau time to consider the responses and factor them into the Report.

 

For those considering embarking on a surrogacy arrangement, especially one with an international dimension, expert legal advice may prove crucial to a successful outcome.  But that advice needn’t cost the earth, and a fixed-fee arrangement ought to be appropriate in many cases.

Contact after Adoption - Is it still the exception?

A Judge in the High Court has taken the unusual step of making an order providing for an adopted child to have a continuing relationship with his birth family.

The child – referred to as P-M in the Judgment – was seven.  He had lived with his foster mother since he was four months old.  She applied for an adoption order in relation to him. 

Before the court at the same time as the adoption application was an application by P-M's maternal grandmother for a contact order.  P-M’s half brother and sister were staying with her.  She had been having contact once a month with P-M by agreement.  She wanted a order confirming that that arrangement would continue.  The application was supported by P-M’s own legal team.  It was opposed by the local authority, who expressed concern that too much contact would blur boundaries for P-M.

The Judge, Lord Justice Ryder (sitting as an additional Judge of the High Court) heard evidence from all of the relevant players.  He found that the foster mother had provided P-M with excellent care.  He observed that a contact order in favour of P-M’s grandmother could generate an anxiety of its own that could be antithetic to the hierarchy of needs which were the very reason for an adoption order.  He considered that, despite P-M's relationships with his maternal family being important, they must take second place to the primary relationship between him and his foster mother. 

However, ultimately he considered that contact was in the child’s interests and was necessary for his welfare to be safeguarded throughout his life.  He made an adoption order in favour of the foster mother and an order for limited contact.

The law and procedure on adoption is found mainly in the Adoption and Children 2002.  That Act imposes a duty on the court before making an adoption order to consider whether there should be arrangements for allowing any person to have contact with the child.  Courts are usually reluctant to make orders for post-adoption contact in the face of reasonable opposition from adopters.  Whilst relations with birth family members are important, the critical and most significant consideration is to ensure that the adoptive placement is as secure, stable and happy as possible.  For that reason, it is extremely unusual for a contact order to be imposed if the adoptive parent or parents oppose it. 

This is also consistent with the theory of adoption.  A child who is adopted legally becomes a member of the new family.  He or she stops legally being a member of his or her birth family.  The adopter/s obtain parental responsibility for the child.  Any person who had parental responsibility prior to the adoption order being made automatically loses it.  So, for all intents, the successful adoption process leads to the child becoming a permanent and full member of the new family. 

But for older children, who know and have important emotional ties with birth family members, it might well be in their interests for contact to continue post-adoption.  That was the conclusion Lord Justice Ryder reached here.  He decided that P-M's welfare throughout his life required the maintenance of a relationship with his maternal grandmother and sister through whom there would be a relationship with his extended birth family.  The contact should contribute to the child’s reassurance and stability - his feeling of identity - without creating a risk of disruption.  The key issue was which arrangement was best able to provide for P-M’s needs having regard to the effect on him during his life of ceasing to be a member of his birth family.

The Judge was keen to emphasise, however, that whilst on facts of the case adoption was not antagonistic to contact, if the court had to choose between adoption and contact, it would unhesitatingly favour adoption.

From April's sweet showers, marriage equality flowers

Marriage equality to become law…

 

... in New Zealand at least, following a vote last week by the House of Representatives there.

By a majority of 77 votes to 44, the Marriage (Definition of Marriage) Amendment Bill 2013 was passed on its third reading.  It received Royal Asset on 19 April 2013.

New Zealand’s Department of Internal Affairs now has four months to make the changes necessary for marriage licensing.  Marriage equality will be effective there from 19 August 2013.

New Zealand will be the first country in Oceania, and the second Commonwealth country (after Canada) to allow same sex-couples to marry.

New Zealand has a well-established pedigree for affording universal rights to groups denied them, and long before others follow their lead.  See, for example, the issue of women’s suffrage.  The Electoral Bill granting New Zealand women the franchise was introduced in 1893.  The same year, Elizabeth Yates was elected Mayor of Onehunga, the first time a woman held such a post anywhere in the British Empire.

Barely 25 years later, along shuffled the UK, with the Representation of the People Act 1918.  That Act – introduced after decades of campaigning, the highlights of which included (amongst other outrages) the force-feeding of imprisoned suffragettes - gave women over 30 who met minimum property qualifications the vote.  Ten years later, the Representation of the People Act 1928 extended the voting franchise to all women over the age of 21, granting women the vote on the same terms as men.      



France's parliament on the vote



Closer to home, on Tuesday France's parliament also voted to enshrine marriage equality in law.  France’s lower house approved a marriage bill in a 331-to-225 final vote, following impassioned speeches by lawmakers for and against the legislation.

And earlier this month, the Uruguayan parliament approved a marriage equality measure.  That bill passed the lower house with a 92 / 71 vote majority.  The Uruguayan senate approved the bill in a 23-8 vote.  Now what is required is the signature of the President, Jose Majuica (who has already indicated he supports the measure) on the bill before it passes into legislation.

The response to the Uruguayan vote

Historically never especially fond of democracy, the conservative religious communities in the countries in question remained true to form.  In Uruguay, for example, the Roman Catholic Church described marriage equality as a harsh blow to the institutions of marriage and the family.  In France, a right-wing senator doomsayed that marriage equality would open the way to people being able to marry animals or objects (whatever gets you through the night, dear…)

But as the votes suggest, these dreary misanthropes are outnumbered by those who support marriage equality.  The New Zealand vote was greeted in parliament by cheers, applause and the singing of a traditional Maori love song "Pokarekare Ana” by some MPs and those in the public gallery (it’s worth checking out the video:  the genuineness of the reaction is really very beautiful and moving).

The scene in New Zealand's parliament after the vote

All of which makes the lumbering approach to marriage equality in England and Wales seem pretty dispiriting.  On 24 January 2013, the Marriage (Same Sex Couples) Bill was introduced to the Commons.  On 5 February 2013, the bill passed its second reading in the House of Commons by 400 votes to 175.  The Bill was then examined in 13 sittings line-by-line, by Committee.  It completed its Committee Stage on 12 March 2013 and is due to have its report stage and third reading in the House of Commons on a day to be determined.  Whilst the majority of the public supports marriage equality (see the YouGov surveys from June 2012 and December 2012), I detect much hand-wringing yet to come to placate the vocal minority against, and particularly those who maintain their appointed deity has set his / her / its face against the concept.

Please don’t let it take the 25 plus years that British women had to wait after their New Zealand sisters got the vote for the universal human right of marriage equality to be afforded to same-sex couples here.

In with the in-crowd: the Hague Abduction Convention gang grows...

My first blog, way back in January (so long ago…) was on Japan’s ratification of the 1980 Hague Abduction Convention.  After some considerable delay and a change of government, it appeared that that ratification was back on track.  Japan’s Foreign Minister announced his government’s commitment to taking steps, and promptly, to sign the Hague Abduction Convention.

It wasn’t all empty rhetoric either.  We know that, because Japan’s Lower House unanimously approved ratification of the Convention on Tuesday.  The Lower House will now consider draft legislation about how the Convention will work locally.

The ratification and draft legislation will then go before the Diet, Japan’s parliament, in late May.  Under Japan’s Constitution, a treaty approved by the Lower House will receive Diet approval if the Upper House does not vote on it within thirty days.

Japan is the only nation among the Group of Eight yet to join the Convention club, which has 89 signatories as at today’s date.

It might have more soon …

Hot on the heels of the Japanese development comes a commitment from Pakistan’s parliament to look at implementing the Convention there.  Earlier this week, Pakistan’s interim law minister, Ahmer Bilal Soofi, said this:

“My ministry will examine it.  We genuinely believe that this convention should be adopted.” 

This statement of intent was made in a speech given at a consultation organised by the charity Struggle for Change, in collaboration with the British High Commission.  In attendance were officials from the diplomatic community, government ministries, police department, as well as legal experts and human rights activists.

Attendees were told that there were 40 child abduction cases between the UK and Pakistan in 2012.  Significant child abduction traffic was also reported involving the USA, Norway, Denmark and the Netherlands.  Unsurprisingly, the most traffic was between countries with significant expatriate Pakistani communities.

Pakistan’s Human Rights Secretary, Shaigan Sharif Malik, likewise committed his ministry to doing the necessaries, and quickly: 

“I give my word that we will be ratifying this Convention soon.  This is an issue regarding children’s rights, something that we are serious about.”

Three working groups focusing on mediation, challenges and implementation, respectively, have now been formed to draft recommendations that will be forwarded to the relevant authorities for effective implementation of the Convention in Pakistan, once ratified.

Although Pakistan is not currently a member of the Hague Abduction Convention club, it has a bilateral arrangement with the UK in the form of a Protocol.  The Protocol was concluded in January 2003, and has been revisited twice since, in September 2003 and February 2006.

The Protocol is primarily concerned with child abduction cases, but cases that involve the cross‐border recognition of orders as to custody and access also fall within the “spirit”, if not the letter, of the agreement.

In terms of practical operation, the Protocol looks to appoint liaison judges in the two jurisdictions; in England and Wales, the liaison judge is Lord Justice Thorpe.  The liaison judges are intended to work together to advance the objects of the Protocol.

But the Protocol does not (and cannot) change the underlying legal mechanisms for resolving child abduction cases between the two countries.  It is at best mood music, playing in the background and seeking to inform and influence, rather than dictate, the approach to be taken in cross-border custody disputes between the two countries.

Not so the Convention:  the Convention introduces a presumption that, save in limited circumstances, the unlawful taking or retention of a child across international boundaries is harmful to his or her welfare.  The Convention introduces a default legal response in such situations, of returning children to the country from where they were taken.

Here’s hoping that Pakistan follow the Japanese lead, and make good on the commitment to ratify the Convention in the very near future.  The more members of the club there are, the better the global response to the peccancy that is parental child abduction.

On Morocco, Kafala and the 1996 Hague Convention

Kafala - I’m reliably informed by those who know better about such things - is the closest Islam comes to the Judeo-Christian concept of adoption.  It is the commitment by an adult to take care, free of charge, of the education and protection of a child as a parent would do for his or her own.

It differs from adoption, in that a kafala arrangement does not extinguish the child’s legal relationship with his or her birth parents.  The child keeps the name of the birth family, special rules on inheritance apply, and (on attaining adulthood) the members of the kafala family are not considered blood relatives.  They are therefore not muhrim to him or her.  Muhrim refers to the rules on family relationships that regulating marriage, permissible behaviour and so on.

Kafala emphasises that the parents assuming the child’s care are not replacing the birth family, but merely acting as trustees or caretakers.

Enough of my awkward attempts to explain complex Islamic principles – and if any Islamic jurists think I’ve got any of the above badly wrong, do please correct me!

I mention kafala because recent changes in the law surrounding it in Morocco risk leaving parents and children in limbo.

Until recently, Moroccan law allowed Muslims – including converts – to assume guardianship of abandoned children.  However, a change in the law last September restricted kafala to Moroccans, meaning that foreign Muslims were no longer eligible to have children placed in their care.  Morocco’s Justice Minister defended the change, which he described to parliament in November 2012 as designed to better protect the interests and identity of children. 



Morocco's Parliament in Rabat



"We found that there were many foreigners who declare themselves Muslims, stay in a hotel and, when they get their child, they leave the country. How can we be sure that they will respect the law and protect the child?"

All of this is a cause of particular heartache for non-Moroccan nationals who had started the kafala process before the change.  Agence France-Presse reported at the start of this week on the plight of a number of individuals affected.  One French couple, Yassamane and Eric, had been waiting to have a child placed with them for more than a year.  Said Yassamane, who gave up her psychology practice in France and moved to Morocco to complete the kafala process: 

“I was awarded my child in April 2012.  It was the happiest day of my life.  But since that date, the judicial procedure that usually lasts a few months has dragged on for more than a year." 

Another affected is Gabriel, a Spanish journalist.  He is waiting to see whether the legal change will affect the kafala decision to place with him of a fifteen-month-old boy. "I'm afraid this decision will be applied retroactively," he said.

More than 100 families - Spanish, French and Americans, as well as Moroccans living in Europe – had children placed with them before the law was changed.  They complain that normally routine court hearings are being delayed indefinitely, and applications have ground to a halt.  They are waiting to see whether the fear given voice by Gabriel comes to pass:  will the change be retrospective in effect? 

In the meantime, many of them continue to visit the children who have been matched with them at the orphanages where they must remain.  Some allow visits to last for six hours a day, but one (in the southern resort town of Agadir), restricts visits to an hour a day.

All very depressing…

But in the interests of saying something mildly helpful, I offer this:  the 1996 Hague Convention on Child Protection recognises and supports international kafala placements.  The Convention entered into force in Morocco in December 2002.  It is now also in force throughout the EU Membership (except for Belgium and Italy, who really need to get on with it!)

If the Moroccan authorities are concerned about foreign applicants and how they will act when they return abroad with a child, I suggest the answer lies in the Convention.  The Moroccan authorities could include in the kafala decision such protective steps and measures as they thought necessary and appropriate.  Under the Convention, that kafala decision (and any conditions attached to it) would be recognised and implemented throughout Europe (and elsewhere, although unfortunately, the Convention is not yet in operation in the USA).  Only in very limited circumstances – for the most part if procedural safeguards had not been observed when making the original decision - could recognition of the decision be refused.  

So, Moroccan authorities, look to the Convention.  It’s there and it works.  Use it!