Reckless culpability and the innocence of youth cross swords in a case that both rewrote the powers of legislation and allowed subjective reasoning to prevail, when two young boys aged eleven and twelve spent the night outside before playing in the rear storage yard of a Co-operative store.
What began as tomfoolery with matches and newspaper, wound up as criminal damage and arson totalling over £1m in damages, however with equal consideration of English criminal law and precedent relating to the facts, it also became a matter destined to reach the House of Lords.
Having decided to camp out underneath the stars, the two appellants trespassed into the refuse area of the store and began reading discarded newspapers, after which they set alight to a bundle of newspapers before placing them beneath a large plastic dustbin. Without staying to watch the flames extinguish, the defendants later left the yard and presumably returned home.
Unfortunately as is the nature of fire, the flames ignited the bin, which subsequently ignited the adjacent bin until the fire spread to the roof and beyond, and so when first heard at trial the judge rightly relied upon the exacting terms of s.1(1) of the Criminal Damage Act 1971, which reads that:
“A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.”
While the term ‘reckless’ remains subjectively difficult to ascertain, the application of this measure failed to discriminate between the range of comprehension created through age, disability, or intelligence. This absence of evaluation forced the jury to determine the boys’ guilt on the objective reasoning of an adult, as established in R v Caldwell and earlier in R v Cunningham (albeit a case more reliant upon maliciousness than ignorance).
In Caldwell the defendant had been intoxicated prior to choosing to set fire to his employer’s hotel, thereby putting the guests and staff in great danger while noting that he had paid little mind to the consequences when starting the fire, while it was this case that led to an objective reasoning test that whilst applicable to most mature adults, offered little consideration for children or vulnerable adults in similar circumstances.
Having deliberated on the certainty of a fair conviction, the judge and jury were left finding guilt, although not without concern for the limitations of the1971 Act, and so with their challenge dismissed by the Court of Appeal, the appellants were granted leave to present to the House of Lords, where greater attention was placed upon the disparity of the Criminal Law Act 2003 and art.40(1) of the European Convention on Human Rights (Public hearings and access to documents), which expressed that:
“States parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.”
It was then with appreciation of the narrowness that recklessness previously enjoyed, that the House examined the relevance of continuing to broaden the scope of reckless behaviour, so as to avoid the need for deliberate and considered forethought to the mindset of those accused.
Upon revisitation of the case history preceding the Criminal Damage Act 1971, it became clear that overlooking the objective test had prevented fair and reasoned judgment, and that this particular case was the perfect vehicle upon which to amend that error, thus the House (by majority) declared the boys’ innocence and upheld the appeal, while clarifying that:
“[I]f the law is to operate with the concept of recklessness, then it may properly treat as reckless the man who acts without even troubling to give his mind to a risk that would have been obvious to him if he had thought about it.”
In this conjoined appeal case there were two matters in need of address, and both involved a local authority and the issuing of final care orders for families in need of reunion. The first was re S (Minors) (Care Order: Implementation of Care Plan) and the second re W (Minors) (Care Order: Adequacy of Care Plan) as shown below:
Re S (Minors) (Care Order: Implementation of Care Plan)
As the mother of three children aged fourteen, eleven and ten, to two fathers, the oldest of them was raised by the father of his younger siblings, and over a course of almost a decade became subject to both emotional, physical and sexual abuse on an almost routine basis.
Having run away from his home the victim explained his suffering and was subsequently placed into foster care, whereupon the stepfather denied all allegations with the full support of the victim’s mother, yet when challenged he displayed threatening behaviour before the local authority and was later sentenced to community service.
In light of those events the two younger children were also placed into foster care, while the parents separated in order to obtain their return to the family home despite recommendations by professional experts that the father remained an unacceptable risk to the children.
Following a hearing in the local court the father was found guilty of sexually abusing the eldest child, while both parents were held to have been physically and emotionally abusive towards all three children, with particular regard to the eldest sibling, while the local authority responded by seeking care orders for the three children.
While it was agreed that the eldest was to remain in foster care, the younger children were designated a care plan involving their return to the mother, however there was a degree of anxiety surrounding the absolute power of local authority decisions in such circumstances, and so mention was made of the potential human rights violation should the mother and children not retain a tenable relationship, along with the proposal of interim care orders so as to provide assurances to the family.
At the hearing the judge granted final care orders for all three children, and yet over time the promises of the social workers and appointed guardians dissolved into disappointment after none of the proposed programmes materialised.
Having been presented to the Court of Appeal, it was held that the local authority had abjectly failed on its promise to provide care, but was acquitted under arguments of monetary cuts and a reduction in public resources, whereupon the mother contended that the court had erred in not considering her suggestions for interim care orders and the children’s guardian sought relief under ss.6 (Acts of public authorities) and 7 (Proceedings) of the Human Rights Act 1998 (HRA), however both arguments were dismissed.
Re W (Minors) (Care Order: Adequacy of Care Plan)
In this instance the welfare of two boys aged ten and twelve years of age rested upon the intervention of the mother’s grandparents, who themselves resided in the United States of America.
Having met overseas, the parents returned to live in the United Kingdom in order to marry before starting a family, however during the course of their childhood the boys had been subjected to numerous separations and reconciliations, and also spent considerable time living apart from one another while remaining in contact with both parents.
This chaotic existence had later given rise to questions concerning the ability of the parents to meet the needs of the children, in large part due to the deteriorating mental health of the mother, who had made insubstantial allegations against the father prior to the local authority applying for an emergency protection and interim care order.
Having established a care plan it was agreed by the County Court that the two boys would be placed into foster care before the arrival of the American grandparents, who planned to live with them in the United Kingdom despite reservations by the judge that their migration would materialise, and that the proposed therapy and marital management programmes would succeed, with particular emphasis on the mother’s diagnosed imbalances.
Upon challenge by the local authority in the Court of Appeal it was held that the care plan had been prematurely executed, and so the final care order was replaced with an interim order, while referring the case back to the awarding judge, an alteration which instigated reluctance by the grandparents to assume care of the boys unless under definite conditions. This prompted the reissue of a final care order with the full support of the parents, albeit in argument that they would apply to have the order discharged if their reunion was not provided in due course.
For clarity, under s.33 of the Children Act 1989 an acting local authority is granted parental responsibility (PR) for the duration of the assigned care order and can therefore determine the rights of the parents in relation to their children, while under s.100, the courts are expressly denied interference with those powers, however, s.6 of the HRA 1998 prevents a public authority from acting in a way that proves incompatible with a Convention right, while s.7 allows those victim of such actions, to bring proceedings against them.
S.8 (Judicial remedies) further enables the court to decide how best to provide legal remedy, or issue powers appropriate to its jurisdiction, which translates that where a local authority infringes art.8 of the HRA 1998 (Right to respect for private and family life) the deciding court can lawfully grant relief to those affected.
More interestingly, under the Review of Children’s Cases Regulations 1991 a local authority is required to consider the possible discharge of a care order on a six-monthly basis (subject to the views and consideration of the child(ren) and parents) while s.3(1) of the Children Act 1989 provides that parents retain the same rights, duties, powers and parental responsibilities as before an order was made, therefore their civil rights are affected, but not wholly compromised.
Finally, s.38 of the Children Act 1989 provides the court with powers to issue interim care orders in order to provide safety and security for vulnerable children for a determined period.
With both cases put before the House of Lords it became evident that in the first case the Court of Appeal had introduced a ‘starring’ mechanism as a means of preventing failure to implement care plans, whereby each plan was marked with progressive indicators that when not reached in the agreed period triggered automatic rights to reactivate the consultation process in order to avoid missed or overlooked public body requirements.
In the second case no such mechanism had been used, which had prompted intervention by the Secretary of State for Health, who received claims that ss.31, 33(3),38 and 100 of the Children Act 1989 were incompatible with existing Convention rights, while the local authority had appealed against the alteration of the care order and the broadening of judicial powers to award interim orders.
Examination of the Children Act 1989 and suggested incompatibility with Convention rights after the introduction of ‘starring’ drew immediate reference to the overlapping rights of courts when care orders are in effect, and while the House appreciated that the inventive use of rudimentary measures was a decision privy to Parliament, and that while there was stark evidence to support legislative reform, it was simply ultra vires for the Appeal Court to act without restraint.
An so with regard to the overextension of the interim care orders when faced with an ill-prepared care plan, the House upheld the appeals bought by both a ministerial and public body, while taking time to remind the parties that:
“Where a care order is made the responsibility for the child’s care is with the authority rather than the court. The court retains no supervisory role, monitoring the authority’s discharge of its responsibilities. That was the intention of Parliament.”
Drawing the line between judicial governance of the family unit, or in the very least of cases, domestic relationships, was a task discussed in a case dating back to 1868, in which a spouse was prone to seek reparation in the criminal courts when her husband struck her in a manner designed to enforce compliance at a time when women and children’s rights were quite literally unheard of.
Having suffered three blows of the defendant’s switch, which by law could be no wider than a man’s thumb, (hence the phrase ‘rule of thumb’), the defendant was indicted for assault and battery before the North Carolina Supreme Court, on grounds that his actions were unprovoked and therefore unlawful, and upon which the court was tasked with an examination of leading case precedent in order to ‘draw the line’ as to when they were entitled to probe further into such apparently trifle matters.
In the first instance, the court turned to State v. Hussey, in which the court had recently held that:
“[A] wife may be a witness against her husband for felonies perpetrated, or attempted to be perpetrated on her, and we would say for an assault and battery which inflicted or threatened a lasting injury or great bodily harm; but in all cases of a minor grade she is not.”
Before reviewing State v. Black, in which the court had more recently held that:
“A husband is responsible for the acts of his wife, and he is required to govern his household, and for that purpose the law permits him to use towards his wife such a degree of force as is necessary to control an unruly temper and make her behave herself; and unless some permanent injury be inflicted, or there be an excess of violence, or such a degree of cruelty as shows that it is inflicted to gratify his own bad passions, the law will not invade the domestic forum or go behind the curtain.”
While also choosing to venture further into the use of physical discipline not only upon wives, but children, both at home and in the school system, where the court gave weight to State v. Pendergrass, in which the court earlier held that:
“[T]eachers exceed the limits of their authority when they cause lasting mischief; but act within the limits of it, when they inflict temporary pain.”
And so with a brief review of existing legal opinion, much of which was in a state of conflict when it came to both the use of ‘correctional’ force, and the means with which it could be dispensed, the court insisted that without further evidence of argument to the contrary, they were reluctant, if not powerless, to delve beyond the facade of marital or educational affairs unless there was compelling evidence that the injuries complained of were to prove lasting and detrimental to either party’s health, thus the case was dismissed in full while the court rightly or wrongly held that:
“Every household has and must have, a government of its own, modelled to suit the temper, disposition and condition of its inmates.”
Duty of care for the purposes of a criminal conviction must always be proven beyond a reasonable doubt, and so when two women are tried for the neglect and subsequent death of the younger of two siblings, the court is left wanting in the face of an appeal that exploits the absence of legal obligation and contractual structure, along with fresh evidence of a judicial error.
In 1957, a young single girl fell pregnant with a boy whose birth resulted in her asking that the appellant take the child and care for it in exchange for monthly payments, to which the appellant agreed, only for the same mother to fall pregnant again some months later with another boy, who on this occasion fell sick and was forced to remain hospitalised for a determinate period.
Upon his discharge, the mother and second child then lived with the appellant for a a number of weeks, before she left to return home with her parents, thereby leaving the appellant to raise and care for the two children unaided and now unpaid.
Following a number of doctor visits concerning bronchial infections and treatment for diarrhoea, it was mentioned by the physician that the younger child was to be taken to hospital to receive much needed medical care, however the appellant ignored the request and continued to care for the boys alone.
This arrangement continued uninterrupted until two utility debt collectors noticed the boys in a downstairs basement and reported their findings to the local police, who investigated the matter, only to find one of the children living in what could best be described a wire mesh chicken coup, while the youngest child was living in a bassinet, however both boys were found to covered in cockroaches and showing visible signs of malnutrition, at which point they were both removed and placed into urgent hospital care.
Unfortunately some thirty-four hours after his admission, the youngest of the children died from the effects of prolonged malnutrition, and so both women were indicted before the U.S. District Court for the District of Columbia on charges of abuse, maltreatment and involuntary manslaughter, the latter of which only the appellant was found guilty and convicted accordingly.
Having challenged the judgment before the Columbia District Court of Appeals, the appellant argued that the jury had found insufficient evidence to support a finding of legal or even contractual duty of care when providing food and water to the deceased, whereupon the court referred to People v. Beardsley, in which the Michigan Supreme Court held that:
“[U]nder some circumstances the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owing, will make the other chargeable with manslaughter.”
However the caveat to this precedent was that it must be equally proven that a legal, contractual but not moral obligation underpinned the duties, and further that a failure to execute them would result in the immediate and direct cause of death and nothing less.
In addition to this, it was also argued that the trial court had failed to adequately instruct the jury to look for any evidence of a legal duty, and that while the jury had retired to deliberate a decision, the judge had communicated with the jury by way of a hand-written note, yet failed to notify the appellant’s counsel, thus the verdict was now automatically unsound, at which point the appeal court reversed the previous judgment and remanded the case back to the district court while holding that:
“Proper procedure requires that a jury be instructed in the courtroom in the presence of counsel and the defendant, and that counsel be given opportunity to except to the additional instruction.”
As is peculiar to criminal law in most jurisdictions, the necessary component for murder requires evidence beyond a reasonable doubt of the both the act itself (actus reus), and the subjective intention (mens rea) of those accused, and so on this occasion the English criminal courts were left with no option other than to reduce a murder sentence to manslaughter, on grounds that there was simply insufficient evidence to adduce deliberate and unlawful killing, as opposed to what could only be construed as a momentary loss of control on the part of the defendant.
Having been born to unloving and thus dysfunctional parents, the appellant had been later adopted by a well educated and devoted couple when aged only eight years of age, and whose only wish was for her to have a better life than the one she had left behind. Sadly during her adolescence, the appellant was further diagnosed with an IQ of just 74, a personality disorder, attention deficit and hyperactivity disorder (ADHD) and prolonged depression, for which she was on prescribed medication.
After meeting her former partner at the young age of sixteen, the appellant soon became pregnant, and gave birth to their son Billy two years later, and although the two of them remained together for a further three years, her partner was eventually incarcerated for assaulting her; an act which had followed years of his routine verbal and physical abuse towards her both before, and after, their son’s arrival.
At the point of her indictment before the Central Criminal Court, the appellant was reported to have called the ambulance services complaining that her son had stopped breathing, and yet despite clear instructions to perform emergency cardiopulmonary resuscitation (CPR) at the time of the call, her son was pronounced dead almost five hours later; after which it was claimed by court that the appellant had murdered her son by way of asphyxiation, and that there was sufficient medical evidence upon which to sustain the conviction; whereupon the appellant challenged the verdict in the Court of Appeals.
Here, the appellant contended that when reaching summary judgment, the trial court had erroneously accepted circumstantial evidence relating to previous interactions with her son, and which presented her in a poor light, however the court referred to R v Penman, in which the deciding court had held that:
“[W]here it is necessary to place before the jury evidence of part of a continual background of history relevant to the offence charged in the indictment and without the totality of which the account placed before the jury would be incomplete or incomprehensible, then the fact that the whole account involves including evidence establishing the commission of an offence with which the accused is not charged is not of itself a ground for excluding the evidence.”
Thus the first aspect of her appeal was denied, while on a second count, the appellant claimed that lack of witness testimony, and only one physical symptom of trauma, prevented the court from establishing beyond a reasonable doubt that she had intended to murder, or at the very least unlawfully kill her son in the moments before his death.
Here the court was reliant upon the presence of petechial haemorrhaging upon her child’s face, which in most instances was attributable to asphyxial death. However, there was also theoretical argument that prolonged resuscitation could also prove a contributory factor; yet further circumstantial evidence proposed this as incredible, based upon the appellant’s refusal to perform CPR whilst waiting for the ambulance crew to arrive, and via witness testimony citing visible evidence of the symptoms upon their arrival.
In addition to this, there was further evidence of bleeding from the child’s ears, which according to expert medical testimony, had often been found present when addressing traumatic asphyxiation cases in which young children had become trapped in washing lines, afact which only exacerbated the suggestion that the appellant had either strangled or smothered her son whilst alone with him, therefore the court held that there was sufficient evidence for a jury to determine that the appellant had unlawfully killed her child.
This left only the third count, which was that a murder conviction was unsafe due to the first two factors, and that there was simply no direct evidence to support the contention that the appellant had wilfully and with malice, killed her child, but that instead, the best the court could hope to rely upon was a manslaughter charge; an argument that caused the court to uphold the third ground of appeal before quashing the murder conviction on grounds that in R v Stacey it had held that:
“[A]n intent to do serious bodily harm may be quickly formed and soon regretted; but so may a less serious intent, simply to stop a child crying by handling him in a way that any responsible adult would realise would cause serious damage or certainly might do so. That would only provide the mental element necessary for manslaughter.”
The intention to bequeath when drafting a well organised and thoroughly considered will remains the deciding authority of the testator, and so when perhaps vital elements to that redistribution are left wanting, the power falls to the court to compel the wishes of the deceased in as full a manner as possible, as was found in this potentially convoluted suit.
Having given tremendous thought to the lifetime of his estate, and the unavoidable dilemma of untimely deaths, the deceased had made express stipulations as to the execution of his legacy should his immediateprogeny die, while this caveat was made clear by the words:
“[I]n case my son and daughter should both of them die without leaving lawful issue, then for the said estates to be disposed of as shall be hereinafter mentioned (that is to say), the longest liver of my two children shall have power, by a will, properly attested, in writing, to dispose of all my real and personal estates amongst my nephews and nieces or their children, either all to one of them, or to as many of them as my surviving child shall think proper.”
And so in the sad event that his two children were unable to live long enough to bear children, or oversee the disposition of his estate as he had wished, the matter was presented to the Court of Chancery, so as to establish if when dying, the power to assign to those in vivo was relinquished, or if the estate was to remain in trust for the benefit of those now dead.
After much deliberation, and a reinvestigation of a number of arguable precedents, the court turned to Brown v Higgs, in which it was held that within circumstances where those granted executory powers have passed, the will itself becomes a mere trust, and therefore:
“[T]he trustee having died without executing it, or transgressing it, or refusing to execute it, shall not prevent its being held an absolute benefit for the objects, with a power to give a preference.”
Thus the court held that where a will or codicil is deliberate enough to provide express use of its power, the court is granted proper authority to ensure that its instructions are followed both with judicial impartiality and honest justiciability, therefore the will was enforced and the proper class of beneficiaries shown due privilege, while the court also held that:
“[W]hen there appears a general intention in favour of a class, and a particular intention in favour of individuals of a class to be selected by another person, and the particular intention fails, from that selection not being made, the Court will carry into effect the general intention in favour of the class.”
In a heart-rending case concerning the right to life and right to choice of venue with regard to palliative care, the parents of an almost two-year old boy become torn between the stark truth of their son’s condition, and the parental struggle to override the needs of the State, where the only voice missing is that of the child.
Born in spring of 2016, the respondents’ son Alfie James Evans was admitted to the Alder Hey Hospital in December of that year, after their son displayed a number of concerning behaviours that in turn led to various forms of treatment, albeit none of which showed any long-term success, until he was later diagnosed with a mitochondrial disorder, producing a degenerative condition that itself was causing the functional erosion of his brain to the point of almost exhaustion, while also proving elusive as to the exact cause and identifiable epistemology.
As time progressed, their son eventually lapsed into a coma, and thus the decision was broached as to what possible steps were available to both the respondents and the hospital, regards how best to care for their son during the time remaining between the diagnosis, gradual and distressing deterioration, and his eventual passing.
The hospital had initially suggested that a long-term palliative plan might offer a prolonged lifespan, although the ultimate prognosis was that Alfie was now in a semi-vegetative state, and would remain so indefinitely, however the respondents were reluctant to accept the suggested prognosis, and so in December 2017 the applicant NHS Trust sought a judicial declaration in the High Court, to support their conclusion that there was little merit in continuing to keep Alfie under ventilatory support, whereupon the respondents moved to adjourn the hearing.
Having undertaken extensive research around the diagnosis, the respondents argued that previous symptoms were traceable to hydrocephalus, however the brain tissue had continued to degenerate, and whatever now remained was merely water and cerebral spinal fluid, as anticipated by the medical team and relevantexpert testimonies. In addition to this, the respondents had advised that Alfie be transferred to the Bambino Gesu hospital in Rome, Italy, where should no treatment prove conclusive, he would again be admitted to a third hospital in Much, Germany, albeit at significant risk to his already fragile health.
While the court extended tremendous sympathy to the plight faced by the respondents, it relied in this instance upon the expert opinion of a Professor Nikolaus Haas of the University Hospital, Ludwig-Maximilians university, Munich, who had previously remarked that:
“Based on the extensive testing already performed, I do agree with the medical teams involved that there are no useful tests that may be performed to improve Alfie’s condition. The genetic testing (i.e. whole genome sequencing) is performed by blood sampling and without any risks for Alfie. These tests may in certain cases be beneficial to delineate a new rare disease as pointed out by the doctors of the Bambino Gesu Hospital. To the best of my knowledge these tests have, even if a new disease is found, never been able to cure a patient with a similar disease pattern as Alfie shows.”
While in Aintree University Hospital NHS Trust v James, Baroness Hale had explained that:
“[T]he focus is on whether it is in the patient’s best interests to give the treatment rather than whether it is in his best interests to withhold or withdraw it. If the treatment is not in his best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it. It also follows that (provided of course they have acted reasonably and without negligence) the clinical team will not be in breach of any duty toward the patient if they withhold or withdraw it.”
And so with full cognisance that Alfie had now lost all sense of vision, hearing, smell and touch response, the court was appointed the painful task of holding that the continued use of ventilation was now an exercise in futility, and that in the best interests of the child, the applicants were free to determine an end date for the treatment.
Relentlessly pursued in the Court of Appeal, Supreme Court and European Court of Human Rights, the previous judgment was consistently upheld, before being heard again in the High Court in order for a decision to be made as to exactly when the palliative care was to cease; however under new representation, the respondents sought a writ of habeas corpus on grounds that Alfie was now being unlawfully detained in Alder Hay hospital against the wishes of the respondents, a contention that was given little credence, and upon which the court relied upon the words of Lady Hale in the Supreme Court hearing, who stressed that:
“A child, unlike most adults, lacks the capacity to make decisions about future arrangements for themselves. Where there is a dispute, it is for the court to make a decision, as it would in respect of an adult without capacity. This is the gold standard by which most of these decisions are reached. It is an assessment of best interests that has been concluded to be perfectly clear.”
Which again concluded that the care plan now in effect was in every respect, in the best interests of their son, and that it was the express desire of the court that the respondents at least help support the medical team assigned his care.
Appealing against the decision under Rule 52.3(1)(a)(iii) of the Civil Procedure Rules, the respondents argued before the Court of Appeal that the High Court had merely continued in its support of the cessation of medical ventilation, instead of clarifying as to the lawfulness of Alfie’s alleged detention at Alder Hay hospital, upon which the Court turned to Gard v United Kingdom, wherin McFarlane J had held that:
“It goes without saying that in many cases, all other things being equal, the views of the parents will be respected and are likely to be determinative. Very many cases involving children with these tragic conditions never come to court because a way forward is agreed as a result of mutual respect between the family members and the hospital, but it is well recognised that parents in the appalling position that these and other parents can find themselves may lose their objectivity and be willing to “try anything”, even if, when viewed objectively, their preferred option is not in a child’s best interests. As the authorities to which I have already made reference underline again and again, the sole principle is that the best interests of the child must prevail and that must apply even to cases where parents, for the best of motives, hold on to some alternative view.”
Thus the Court held again that:
“The application of a different legal label, namely habeas corpus, does not change the fact that the court has already determined the issues which the parents now seek, again, to advance. Their views, their rights do not take precedence and do not give them an “unfettered right” to make choices and exercise rights on behalf of Alfie.”
Before dismissing the appeal on grounds similar to those taken by the High Court; after which an application for the return of Alfie to Italy was presented to the High Court, based upon the granting of Italian citizenship by the Italian Ministry of Foreign Affairs to the Secretary of State for Foreign and Commonwealth Affairs, an act that was immediately refuted both on grounds of lineage and self-evident jurisdiction of the court, the latter of which was shown in Re B (A Child) (Habitual Residence: Inherent Jurisdiction) in which Lord Wilson had explained how:
“A child’s habitual residence in a state is the internationally recognised threshold to the vesting in the courts of that state of jurisdiction to determine issues in relation to him (or her).”
“Article 8 of Council Regulation (EC) No 2201/2003 (“Regulation B2R”) provides that the courts of an EU State shall have jurisdiction in matters of parental responsibility over a child habitually resident there at the time when the court is seised.”
However the Court also noted that since the last hearing, Alfie had been successfully extubated from the ventilation unit, and was now breathing of his own accord, a change that moved the court to conclude that:
“[T]here arises an opportunity to explore creatively, ambitiously and even though it may be a forlorn hope, cooperatively, the options that may now emerge in a palliative care plan which could encompass, at least theoretically, Alfie being cared for, in his final hours or days, at home or in a hospice, or even on the ward and not in the PICU.”
Upon which the application was dismissed, and the matter now left for the respondents and Alder Hay Hospital to hopefully negotiate as best as possible with the time remaining.
Damages for nervous shock (and even secondary nervous shock) are now not uncommon across many jurisdictions, as was outlined in my academic paper ‘A Comparative Analysis of Secondary Nervous Shock within Tort Law’ and as explored within McLoughlin v O’Brian, however in this matter, the courts were less certain as to how best to regulate the level of award, yet forged ahead regardless of any potential to undermine the cost of psychological trauma.
In spring of 1964, the respondent was returning home from a day trip with her sizeable family, when after parking their Bedford Dormobile in an available lay-by, an out-of-control car ploughed into the family, as she, the recently pregnant mother of eight children, stood helplessly watching from the other side of the road. With her husband pronounced dead, and almost all of the children suffering injuries, the respondent was left to pick up the pieces of her already challenging life, after which she initiated proceedings for damages.
Claiming pecuniary loss as a result of her husbands death, the court awarded £15000, along with an additional £4000 for nervous shock, as had been privy to such claims for the preceding quarter century. Upon appeal, the defendant-appellant cited a gross overestimation of the award for nervous shock, relying upon an absence of damages based tariffs in this particular area for justification.
With examination of recent case precedent and the comments of her consultant psychiatrist, who remarked during the trial that:
“[T]here is no medical doubt at all that she is suffering from a morbid depression; she is now officially ill.”
“In other circumstances I would probably have brought her into hospital, at least for a rest, but possibly for electrical treatment and it may come to that yet.”
The Court acknowledged the robustness of the respondent and her tenacity in the face of such a massive loss, yet illustrated that while English law precluded a right to compensation for grief and sorrow, evidential and medically diagnosable trauma proved an exception to that rule where such symptoms were demonstrable.
It was then that the Court uniformly outlined how it was beyond the power of the courts to undermine the significance of nervous shock, and that in any respect, judicial consensus supported the amount awarded through the comprehensive evaluation of the numerous years of suffering and morbid depression faced by the respondent in addition to her expected mourning. It was for these reasons that the Court upheld the award and dismissed the appeal.
With the introduction of Alternative Dispute Resolution (ADR) in 2010, the essence of divorce and family proceedings became less governed by the rigours of litigation, and one more attuned to continuous and considered discourse between parties, on provisional terms that embraced the welfare of children and respect for individual rights.
After marrying relatively young, and moving quickly into starting a family, two devout members of the Jewish faith found themselves in stark opposition to how best they could live their lives, and in turn seek to end the marriage before occupying different countries.
When the matter of how contact could be set between the father and the two small children, it soon became a matter of contention, and one that ultimately drew guidance from the Jewish community, but overall authority from the English courts. When adopting ADR strategies, the emphasis is typically placed upon expedience and reduced costs; however due to such vast geographical differences, and intrinsic religious constraints, the process of divorce ran over a period of years versus months, and was certainly not without its frustrations.
What eventually emerged however, was that through a combination of delicate communication, respect for doctrinal traditions, cohesive written agreements and the balancing of the needs of the children, it was possible to overcome the potential pitfalls of cross-jurisdictional conflict, and move matters to a much more mature and objective conclusion; an outcome that had at times, seemed unlikely given the inclination by the parties involved to build walls between them, that served only to harm the children and drain financial resources more than was necessary.
Thankfully, it all came down to a successful collaboration of the Jewish authorities, domestic courts and continued willingness of the parents to collectively work toward a resolution that now stands as testament to the transcendence of ideology, in favour of a united family, even after the dissolution of marriage.