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Updated: 6 hours 39 min ago

Supreme Court: state immunity rules incompatible with Article 6

Fri, 2017-10-20 09:09

“A declaration of incompatibility under the HRA cannot get money for a claimant, though it may lead to a change in the law. But an EU claim overriding a domestic statute can do so, whether directly because of some EU overriding law or, as here, because international law operated through EU law.

Brexit will bring a new twist to this – in the present circumstances, a human rights breach without a remedy for the particular claimants, unless the politicians step in. Don’t somehow think that this will be high on the governmental list of deficiencies to be resolved by exercise of the Henry VIII clause in the Withdrawal Bill: see my post here.”

UK Human Rights Blog

Benkharbouche & Anor v Foreign & Commonwealth Office  [2017] UKSC 62, 18 October 2017  – read judgment

If you work for an embassy in London and are not a UK national, you cannot sue your employing state when you get unfairly dismissed. But if you enter a commercial contract with the same embassy, you can sue them.

This is the conundrum which faced the Supreme Court, who decided that the former result, although laid down by statute, was incompatible with Article 6 of the ECHR.

The SC’s sole judgment was by Lord Sumption, with whom the other justices agreed. It is a tour de force of international (rather than human rights) law, because therein lay the key issue.

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Filed under: World

Magical sparkle powers – a sparkle too far?

Wed, 2017-10-18 11:42

Nanny state on steroids!
“If police came to my door, forced entry and removed me from my home to hospital for treatment that I’d said I didn’t want, just because doctors thought my decision was stupid and went before a Judge on their own without putting my side of the story, I wouldn’t be satisfied to be told that the Court’s magical sparkle powers make all of this okay. It isn’t okay.”

suesspiciousminds

Regular readers will know that when I read the phrase “The Court’s powers under the inherent jurisdiction are theoretically limitless” it makes me bristle, and hence my coining the name “magical sparkle powers” for the use of these, to remind ourselves that the Court is effectively inventing powers for itself out of thin air.

As is established law, Princess Kenny MAY use her magical sparkle powers to get the Black Friday Bundaroo

The problem I have with it is not that the Court have used the inherent jurisdiction as a way to solve a particularly thorny legal problem on an individual case, it is that this then gets used as an authority for “well, we could do THAT with our magical sparkle powers, so THIS is only a further stride along that path” and then THIS gets used as authority for taking another stride to THE OTHER. It is the…

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Filed under: World

BBC’s Today Programme And Researching Reform On Children’s Right To Speak To Judges

Wed, 2017-10-18 07:41

Any reform must also address and punish overzealous Guardians and social workers who replace the child’s voice with their own, typically by making false, misleading and inaccurate reports to the court, incapable of withstanding objective scrutiny.

Researching Reform

BBC Radio 4’s Today Programme this morning focuses on children’s right to speak with family law judges. Researching Reform had the privilege of talking with Sanchia Berg about the policy, what happened to it and why it was needed.

The piece includes thoughts from a boy called Oscar, who says he feels children should have the right to speak to judges and that it would make the process more friendly.

An extract from our conversation can be heard at around 0:52:00 over on BBC Radio 4’s live player, and the accompanying article on the topic can be read here.

For a summary of this policy, and its development over the last ten years, our Lexis Nexis article offers a complete history.

Many thanks to Sanchia for inviting us to share our thoughts.

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Filed under: World

Trauma Informed Care & people of colour

Mon, 2017-10-16 09:21

Race Reflections

“If you are silent about your pain, they’ll kill you and say you enjoyed it” Zora Neale Hurston

There are different kinds of wounds. Not all pain is deemed legitimate. Oppression causes trauma. Amidst the (fairly) obvious, debates around what really constitutes trauma as laid out in criterion A of the Diagnostic Statistical Manual (DSM)’s diagnosis for Post Traumatic Stress Disorder (PTSD); are alive and well. Criterion A now requires that an individual has been ‘confronted with: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence’ in order to qualify as having experienced trauma. In comparison to DSM-IV and previous versions, the DSM-V notably includes sexual violence but not racial violence…troublingly evoking the fight for racial justice.

Looking back in history, (white) women’s rights have always taken precedence over the rights of people of colour. For example, in the US white women were afforded…

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Filed under: World

#Discharge of #CareOrders & #HomePlacements: ChildRemoval & #PublicFunding conundrum

Sun, 2017-10-15 20:45
Care Orders and Home Placements: removal and the public funding conundrum | Michael Jones15 Winckley Square Chambers | FAMILY LAW WEEK | 7 July 2014

Michael Jones, barrister, of 15 Winckley Square Chambers considers the lessons to be learned from Re DE (A Child) when care plans provide for placements at home with the family.

The Re B and Re B-S effect

The decisions in Re B [2013] UKSC 33 and Re B-S (Children)  [2013] EWCA Civ 1146 have had a massive impact upon the long-term care planning of local authorities. It is generally accepted amongst practitioners that the recent line of case law has made it increasingly difficult for local authorities to obtain the court’s approval of adoptive care plans in respect of subject children. This is due to the fact that the degree of analysis and evaluation needed within the local authority evidence in order to support a care plan of adoption is now much higher in the post Re B-S landscape; the bar has been raised and the court must be satisfied that “nothing else will do”. One of the ramifications of the decision in Re B-S is that, in the medium to long term, practitioners have experienced – and will more than likely continue to, experience – an increase in the number of care orders being made by the courts, accompanied by care plans for the placement of the subject child at home within the family.

Local authorities will inevitably issue care proceedings and, on occasion, find themselves in a position where it is simply not possible to provide the court with the necessary evidence in order to justify the argument that nothing else will do save for placement outside the birth family. From the perspective of a local authority, this leaves a situation where the local authority continues to be responsible for the child whilst he or she remains in the care of their parents. For parents, the obvious positive is that they will remain living with their child, albeit, with the local authority sharing parental responsibility. The problem, from the perspective of a parent, comes in circumstances where, at a later date following the conclusion of care proceedings, the local authority makes the decision to remove the child from their care.

Children Act 1989, section 33

The law in this area is clearly set out at section 33(1) of the Children Act 1989:

“Where a care order is made with respect to a child it shall be the duty of the local authority designated by the order to receive the child into care and to keep him in their care while the order remains in force.”

Section 33(3) of the Act reads:

“While a care order is in force with respect to a child, the local authority designated by the order shall –

(a) have parental responsibility for the child; and

(b) have the power (subject to the following provisions of this section) to determine the extent to which

(i) a parent, guardian or special guardian of the child; or

(ii) a person who by virtue of s.4(a) has parental responsibility for the child,
may meet his parental responsibilities for him.”

Following on from this, under section 33(4), it is stated that:

“The authority may not exercise the power in subs.(3)(b) unless they are satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare.”

Accordingly, the law states that, in circumstances where a child is placed at home under a care order, the designated local authority may not remove that child from the care of the parents unless it is satisfied that such a step is necessary in order to safeguard or promote the child’s welfare.

Protection of human rights

Importantly, the Children Act also states at section 39(9) that:

“The power in subs.(3)(b) is subject (in addition to being subject to the provisions of this subsection) to any right, duty, power, responsibility or authority which a person mentioned in that provision has in relation to the child at his property by virtue of any other enactment.”

This, therefore, encompasses the human rights element set down by The European Convention for the Protection of Human Rights and Fundamental Freedoms and incorporated into domestic law by the Human Rights Act (HRA). Under article 8 of ECHR,

“(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There should be no interference by a public authority with exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country for the prevention of disorder or crime, for the protection of health of morals, or the protection of the rights and freedoms of others.”

Under section 6(1) of HRA, it is unlawful for a public authority to act in a way which is incompatible with the ECHR; a local authority must therefore not act in a manner which would infringe the article 8 rights of either a child or a parent. The case of Re S (Minors)(Care Order: Implementation of Care Plan): Re W (Minors)(Care Order: Adequacy of Care Plan) [2002] UKHL 10 confirms that the court, when dealing with care proceedings, may invoke its jurisdiction under section 8(1) HRA 1998 and grant appropriate relief to a victim of an unlawful act. Under section 7(1) of the HRA, any parent who claims that a local authority has acted, or is proposing to act, in a way that is made unlawful by s6(1) may either bring proceedings under the HRA  or rely on the Convention right in any other legal proceedings under s8(1). A parent who is facing the removal of their child by a local authority following the making of a care order can, therefore, apply to the court to invoke its jurisdiction and grant an injunction, preventing the local authority from instigating the removal.

Re DE (A Child) [2014]

The matter of removal following the conclusion of care proceedings has recently arisen in the case of Re DE (A Child) [2014] EWFC 6. This was an appeal heard by Baker J, in relation to the decision of a district judge, dismissing the father’s application for injunctive relief in order to prevent the removal of his child. The facts of this case were that the child, D, had been made subject of a care order with a care plan being that of a home placement with both of his parents. Later, following the conclusion of the care proceedings, the local authority formed the view that it was no longer manageable or safe to allow D to remain at home and sought to remove him from the care of the parents. The father applied to discharge the care order and also sought an injunction preventing the removal. Baker J allowed the appeal on the basis that the district judge’s decision to refuse the application for injunctive relief was plainly wrong; importantly the court also set down some general guidance for future cases which conclude with a child remaining at home under a care order and where a local authority later seeks to remove the child from the home. The problem for any parent facing this situation is that any local authority that shares parental responsibility under a care order, does not of course have to return the matter to court in order to remove the child from a placement with the birth family. Unfortunately, the only realistic way for a parent facing this situation to return the matter to the court arena is to apply for a discharge of the care order and, as any family practitioner in the public law arena is aware, this brings to the fore the overarching issue of obtaining public funding for such an application; there is no automatic entitlement to the same.

What is of great importance within the judgment in Re DE, is that Baker J noted the decisions in Re B and in Re B-S and how these cases have “changed the landscape” in respect of decision making in relation to children who are subject to care proceedings. After referring to the fact that, in light of the aforementioned authorities, any local authority and any court making the decisions about the long-term future of children must address all realistic options and conduct a global and holistic analysis before reaching a conclusion, the judge stated:

“To my mind, where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family is obliged in law to follow the same approach. It must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do. Before making its decision, it must rigorously analyse all the realistic options, considering the arguments for and against each option. This is an essential process, not only as a matter of good practice, but also because the local authority will inevitably have to demonstrate its analysis in any court proceedings that follow the change of care plan, either on an application for the discharge of the care order or an application for placement order under the Adoption and Children Act 2002. This process of rigorous analysis of all realistic options should be an essential feature of all long-term planning for children. And, as indicated by Munby J in Re G, the local authority must fully involve the parents in its decision-making process.

“While this process is being carried out, the child should remain at home under the care order, unless his safety and welfare requires that he be removed immediately. This is the appropriate test when deciding whether the child should be removed under an interim care order, pending determination of an application under s.31 of the Children Act: Re L-A (Children) [2009] EWCA Civ 822. The same test should also apply when a local authority’s decision to remove a child placed at home under a care order has led to an application by the parents to discharge the order and the court has to decide whether the child should be removed pending determination of the discharge application. As set out above, under s.33(4) of the 1989 Act, the local authority may not exercise its powers under a care order to determine how a parent may exercise his or her parental responsibility for the child unless satisfied it is necessary to do so to safeguard or promote the child’s welfare. For a local authority to remove a child in circumstances where its welfare did not require it would be manifestly unlawful and an unjustifiable interference with the family’s Article 8 rights.” (paras 34 and 35)

This section of the judgment makes clear that the rigorous analysis required in light of Re B-S applies not only to care proceedings but also in circumstances where a care order has been made and the child remains residing with the parents (it is an essential feature of “all” long-term care planning for children). A local authority cannot simply make a decision to remove a child without being able to fully justify it in line with the principles set down by Re B-SRe B and Re L-A; there must be a detailed analysis weighing up all possible placement options and fully justifying removal on the basis that the child’s safety requires immediate separation from the parents. Any local authority that removes a child from a home placement under a care order and fails to evidence the required degree of assessment and analysis resulting in removal, may well find itself facing injunctive relief under the Human Rights Act at the first hearing of any discharge application.
G v N County Council [2008]

Another case of note in the context of removal of children from the family under the auspices of a care order is G v N County Council [2008] EWHC 975 (Fam), [2009] 1 FLR 774. Within the G v N judgment, McFarlane J, as he was then, stated the following:

“The issue is the approach a local authority should take to changing the care plan under the care order and, whilst the established level of concern and background established by the care order is there, the previously proportionate plan of having a child at home, if it is to be changed, has to be changed after a proper consideration and assessment of all of the available evidence and in a way that meets the child and the mother’s human rights as described in the earlier decisions.

“In my view, the quality of decision-making and the consequences of it in the context of a case such as this are just as important and have consequences which are just as likely to be long term as is the case under an EPO. In fact, given the existence of emergency protection order and, in contrast, the limited options available to a parent in a case such as this, the human rights considerations require that the quality of the process should be at least as high, if not higher, as that in an emergency protection order case.

“It is not the function of this court to lay down restrictions as to the sort of assessment work that should be put in place before a radical change of care plans such as this, but it does seem that some formal assessment, whether it is called a core assessment or otherwise which draws together all of the evidence in a considered way rather than simply at LAC meetings or other professional gatherings, and give the parent a chance to contribute to that process, and then take stock of all of that material in the way that a core assessment would do, is the level of intervention and planning that should be brought to bear before a change of care plan as draconian as this takes place.” (paras 30-32)

This judgment pre-dates that of Re B-S and, as discussed above, any assessment work prior to removal of a child under a care order should now comply with the analytical guidance set down by Re B-S. The interesting point to be taken from G v N are the comments in relation to the quality of the decision making process being at least as high, if not higher, than that in the case of an emergency protection order.

Re G (Challenge to local authority’s decision) [2003]

A further case of interest in respect of the decision making process following the making of a care order can be found in Re G (Challenge to local authority’s decision) [2003] EWHC 551, where Munby J, as he then was, stated the following:

“In a case such as this, a local authority, before it can properly arrive at a decision to remove children from their parents, must tell the parents (preferably in writing) precisely what it is proposing to do. It must spell out (again in writing) the reasons why it is proposing to do so. It must spell out precisely (in writing) the factual matters it is relying on. It must give the parents a proper opportunity to answer (either orally and/or in writing as the parents wish) the allegations being made against them. And it must give the parents a proper opportunity (orally and/or in writing as they wish) to make representations as to why the local authority should not take the threatened steps. In short, the local authority must involve the parents properly in the decision-making process. In particular the parents (together with their representatives if they wish to be assisted) should normally be given the opportunity to attend at, and address, any critical meeting at which crucial decisions are to be made.”

Munby J clearly set out the correct decision making process which must be undertaken by any local authority seeking to remove a child who is subject to a care order. In the event that the local authority has failed to follow such a procedure, save in cases of a justifiable emergency, it could be argued that the procedure has been plainly inadequate and unfair.

Baker J’s general guidance in Re DE

In Re DE, Baker J concluded by setting out the following general guidance in respect of cases where a local authority seeks to remove a child that is subject to a care order. This guidance was seen and approved by the President of the Family Division:

(1) In every case where a care order is made on the basis of a care plan providing that a child should live at home with his or her parents, it should be a term of the care plan, and a recital in the care order, that the local authority agrees to give not less than fourteen days notice of a removal of the child, save in an emergency. Fourteen days is an appropriate period, on the one hand to avoid unnecessary delay but, on the other hand, to allow the parents an opportunity to obtain legal advice;

(2) ?Where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do and must rigorously analyse all the realistic options, considering the arguments for and against each option. Furthermore, it must involve the parents properly in the decision-making process;

(3) In every case where a parent decides to apply to discharge a care order in circumstances where the local authority has given notice of intention to remove a child placed at home under a care order, the parent should consider whether to apply in addition for an injunction under s.8 of the HRA to prevent the local authority from removing the child pending the determination of the discharge application. If the parent decides to apply for an injunction, that application should be issued at the same time as the discharge application;

(4) When a local authority, having given notice of its intention to remove a child placed at home under a care order, is given notice of an application for discharge of the care, the local authority must consider whether the child’s welfare requires his immediate removal. Furthermore, the authority must keep a written record demonstrating that it has considered this question and recording the reasons for its decision. In reaching its decision on this point, the local authority must again inter alia consult with the parents. Any removal of a child in circumstances where the child’s welfare does not require immediate removal, or without proper consideration and consultation, is likely to be an unlawful interference with the Article 8 rights of the parent and child;

(5)  On receipt of an application to discharge a care order, where the child has been living at home, the allocation gatekeeper at the designated family centre should check whether it is accompanied by an application under s.8 of HRA and, if not, whether the circumstances might give rise to such an application. This check is needed because, as discussed below, automatic legal aid is not at present available for such applications to discharge a care order, and it is therefore likely that such applications may be made by parents acting in person. In cases where the discharge application is accompanied by an application for an order under s.8 HRA, or the allocation gatekeeper considers that the circumstances might give rise to such an application, he or she should allocate the case as soon as possible to a circuit judge for case management. Any application for an injunction in these circumstances must be listed for an early hearing;

(6) On hearing an application for an injunction under s.8 HRA to restrain a local authority removing a child living at home under a care order pending determination of an application to discharge the care order, the court should normally grant the injunction unless the child’s welfare requires his immediate removal from the family home.

The lessons learned

The first thing any practitioner representing a parent in the case of a planned removal of a child under a care order must do is to ensure that the local authority have followed the correct process. Save for emergency situations, 14 days notice should have been provided to the parents and there should be a full analysis, ideally in assessment format (the comments of Munby J in Re G specifically refer to reasoning justifying removal, preferably being in writing), evidencing the need for removal in accordance with the relevant authorities (Re B, Re B-S). In any case where a discharge application is made on behalf of a parent, consideration must also be given to making an application for injunctive relief under section 8 of the  Human Rights Act, in order to attempt to prevent removal prior to the court having had the opportunity to fully consider the discharge application; this then gives the court the option to list the matter for a contested interim hearing in respect of the injunction application if necessary.  It is notable that Baker J’s guidance clearly states that the court should normally grant the injunction unless the child’s welfare requires immediate removal.

From the perspective of local authorities, it is crucial that, save in cases of an emergency, the appropriate process set out in the guidance above is followed and that ideally a full, detailed and analytical social work assessment is carried out prior to the notice of the decision to remove the child being provided to the parents; any such assessment must comply with the guidance set down by Re B-S and justify any plan for immediate removal on the basis that the child’s safety requires the same. There is no legal requirement for such a written assessment but it appears quite plain from the relevant case law that it is good practice to make such a document available to the parents and their representatives in anticipation of any decision to remove. All parties to care proceedings which conclude with a home placement under a care order will also have to have in mind that it should be included within the care plan and recited on the final order, that the local authority agrees to give 14 days notice prior to the removal of the child, save for in an emergency.

Public funding of proceedings

The main problem however, is surely that of funding. In the case of Re DE the only reason the father’s application for discharge was brought before the court was due to the fact that his solicitor had agreed to represent him on a pro bono basis. The fact of the matter is that currently a parent facing an application by a local authority for a care or supervision order (neither of which necessarily entail the actual removal of a child) is automatically entitled to public funding. However, a parent facing the imminent removal of their child in a case where a care order has been granted, has no automatic entitlement to such funding; it is difficult to see how it can be right that a parent facing such a scenario has no recourse to public funding despite the potentially huge ramifications of the removal of their child and the significant interplay of human rights issues. It is notable that in Re DE the father lacked litigation capacity and was still not eligible for public funding to support his discharge and injunction applications; there is little doubt that the lack entitlement to public funding in such circumstances is arguably a human rights issue in itself. The question is whether, in a new landscape where the number of cases which conclude with children being placed at home under care orders will increase and where local authorities later seek to remove children from these family placements, there will be any reform of the current rules in respect of the eligibility to public funding in such cases. One would expect that there has to be in order to ensure that the human rights of children, as well as those of parents, can be protected.

7/7/14

___________________________________________________________________________________________

ALSO SEE:

[PDF] Applications to Discharge Care Orders – Cafcass Care order or Supervision Order? | The Transparency Project

http://www.transparencyproject.org.uk/care-order-or-supervision-order/

26 Nov 2016 – The District Judge disagreed and decided that a care order should be made. … and the decision of Baker J in Re L-A (Children) [2009] EWCA Civ 822, … Fifthly, a care order will last (unless it is discharged) for the whole of a …

Discharge of care order (IRO takes a kicking) | suesspiciousminds

https://suesspiciousminds.com/2015/06/…/discharge-of-care-order-iro-takes-a-kicking…

29 Jun 2015 – This was the mother’s application to discharge the care order on her son …. the Care Order should be discharged and simultaneously on the LA …

Discharging a full care order – Parents Forum | Family Rights Group

http://www.frg.org.uk › Parents’ discussion topics › Do you have a child in care?

4 Dec 2015 – 4 posts – ‎2 authors

To successfully discharge a care order, you would need to show that there … of the court which willgive the reasons for the care order being made. … We did contact the LA around 18 months after the final hearing to be told …

If your child is taken into care – GOV.UK

https://www.gov.uk/if-your-child-is-taken-into-care

If your child is taken into care because of a care order, your council will share … guardianship; the court lifts the order (this is called ‘discharging‘ the order).

[PDF] Final care plans – when courts say “no!” – St John’s Chambers

http://www.stjohnschambers.co.uk/…/wp…/Final-care-plans—–when-courts-say—-no—.pd…

5 Aug 2014 – home throughout the proceedings albeit under interim care orders. … improvement/worsening of home conditions, there should be care orders at ….. discharge of the care, the local authority must consider whether the child’s.

Local Authority duties towards children – Child Law Advice

childlawadvice.org.uk/information-pages/local-authority-duties-towards-children/

3 Aug 2016 – The Local Authority can provide services under section 17 Children Act …. A Care Order can only be discharged by the court on the application …

5.1.21 Discharge of Care Order

wirralchildcare.proceduresonline.com/chapters/p_discharge_care.html

Plans are then to be considered and put in place to discharge the Care Order as soon as it is feasibly possible. This will only be done if it is in the child or young ..


Filed under: World

#SocialEngineering #GayAdopters #PublicInterest: Elsie Scully-Hicks: First picture emerges of toddler allegedly murdered by father!

Sun, 2017-10-15 02:07
Elsie Scully-Hicks: first picture emerges of toddler allegedly murdered by fatherFriday 13 October 2017 

Matthew Scully-Hicks is accused of shaking 18-month-old to death two weeks after he and husband formally adopted her.

 Elsie went to live with Matthew and Craig Scully-Hicks at the age of 10 months. Photograph: South Wales police

 

Matthew Scully-Hicks allegedly physically abused Elsie for months before shaking her to death at the family home in the Cardiff suburb of Llandaff.

A jury has been told that Scully-Hicks, 31, was struggling to cope with the girl, telling his husband, Craig Scully-Hicks, that Elsie was “a psycho” and “Satan dressed up in a babygrow”, while neighbours allegedly heard him swearing at and insulting the child.

Cardiff crown court has heard that Elsie was removed from her natural mother, a drug user, within days of her birth in November 2014. She was placed in the care of Vale of Glamorgan council and went to live with the Scully-Hickses when she was 10 months old.

Craig has told the court he had wanted a “daddy’s little princess”. She was tiny when she arrived, he said, but “loud and bouncy”. Matthew stayed at home to look after the girl while Craig, a 36-year-old account manager, carried on with his job, often working away.

 Matthew Scully-Hicks. Photograph: Andrew Matthews/PA

Craig insisted their home was happy and always full of friends and family. “If I had suspected anything I wouldn’t have tolerated it.”

Asked by Matthew’s barrister, Robert O’Sullivan QC, if he had ever heard his husband shouting at Elsie or her adoptive sibling, Craig replied: “No.” He said his husband was nicknamed “safety boy” by some family members because he was so sensible.

Elsie was formally adopted on 12 May 2016. On 25 May at 6.18pm, Wales ambulance service received a 999 call from Matthew.

“I was just changing my daughter for bed and she went all floppy and limp,” he told the operator. During the 999 call, Scully-Hicks could be heard saying: “Oh my god” and “this is horrible”.

Paramedics and police found Elsie not breathing and in cardiac arrest. Matthew allegedly explained to a paramedic that the child had “screamed out as if in pain, then collapsed”.

At the hospital, Matthew told police, doctors and his husband that he had changed Elsie on the floor in front of the television.

He said he had taken the dirty nappy out to the kitchen, leaving Elsie on the floor, and returned to find her apparently sleeping. He said she had not responded and he had begun CPR (cardiopulmonary resuscitation).

The prosecution alleges Matthew murdered Elsie after months of abusing her physically.

A postmortem examination found Elsie had recent and older bleeding on both sides of her brain. She had haemorrhages in both eyes and fractures to her skull and her ribs.

On Thursday a paramedic, Jonathan Aberg, told the jury he had attended the couple’s home with police at 6.25pm on 25 May.

Aberg said: “He [Matthew] directed us round to the right, to where the child was. I believe she was on her back. She appeared lifeless. A little blue. We started CPR. She wasn’t breathing. She had no pulse.”

Elsie was taken to the paediatric intensive care unit at the University Hospital of Wales, he confirmed. She arrived at the hospital at 6.53pm and her care was taken over by hospital staff. Elsie died at the hospital in the early hours of 29 May.

Dr David Tuthill, a consultant paediatrician, who attended to Elsie when she arrived in hospital, said Matthew seemed calm.

He said Craig was “very tearful and upset” but his “recollection of [Matthew] was of him being very calm.

“It was something, as I came back down to intensive care, that I said to my nurse practitioner. I said: ‘That’s strange, he was very calm’.

“Most resuscitations, people are in tears. Parents are normally in floods of tears. It struck me as very unusual. People react in different ways. The common way when your child is being resuscitated and dying in front of you is to cry.”

Dr Nia John, a community paediatrician who spoke to Elsie’s adoptive parents at the hospital after her admission, said Matthew had looked upset. “I didn’t come away from there thinking it was abnormal,” she said.

Matthew Scully-Hicks, from Delabole, Cornwall, denies murder. The trial continues.

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Filed under: World

#Jurisprudence: #Hanafi Legal Theory in the #OttomanEmpire: The case of the Cash #Waqf!

Sun, 2017-10-15 01:47
HANAFI LEGAL THEORY IN THE OTTOMAN EMPIRE: THE CASE OF THE CASH WAQF |  | LOST ISLAMIC HISTORY15 October 2017

The study of Islamic law in the Ottoman Empire is a vibrant and dynamic field. After the Mongol invasions of the thirteenth century, the early Ottoman State was an important actor in the Muslim world, re-establishing Muslim sovereignty and intellectual life in Anatolia, the Levant, and Egypt, while simultaneously expanding Islam into a new frontier in the Balkans.

It is partly for this reason that we see numerous structural innovations in the application of Islamic law in the Ottoman state. Unlike previous polities, the Ottomans established a clear hierarchy of religious schools (madrasas) with standardized curriculums that corresponded with a hierarchy of teachers and judges. They also institutionalized the office of the mufti, which had previously been a position that was a generally unofficial position separate from governance and created a hierarchy of muftis throughout the empire.

The tuğra of Sultan Süleyman, who appointed Ebū’s Suʿūd as grand mufti in 1545

Yet despite this institutionalization of the structure of Islamic law, the underlying foundation of law in the Ottoman Empire continued to be traditional Islamic legal theory, particularly that of the Ḥanafī school of jurisprudence. This is most clearly seen in the legal writings of Ebū’s Suʿūd Efendi (d. 1574), who served as the grand mufti (şeyhülislam) of the Ottoman state for much of the sixteenth century. His Treatise Regarding the Permissibility of Cash Waqfs shows a strong adherence to traditional legal theory even in an ever-changing world empire.

Background

Ebū’s Suʿūd served as the grand mufti of the Ottoman state for thirty years during the sultanate of Süleyman I after having risen up through the mufti hierarchy in the 1530s. He issued a plethora of legal opinions (fatwas) throughout his time in office, which would often be accompanied by an imperial edict, further solidifying the authority of the grand mufti. He thus likely had the biggest impact on the office of the Grand Mufti, shaping how it would be seen for centuries afterwards.

One of the most pressing issues Ebū’s Suʿūd had to deal with was the cash charitable endowment (waqf, plural awqāf). Traditionally, the waqf played a major role in Muslim societies. It would most commonly take the form of a parcel of land or a business that a wealthy benefactor would endow to a charitable cause. In theory, the land now belonged to God and all the profits made off that land were promised to whatever charitable cause the benefactor stipulated in the original endowment documents. Through such awqāf, important social services such as schools, libraries, soup kitchens, orphanages, and mosques would be supported through the perpetual profits from the waqf.

In the Ottoman Empire in the fifteenth century, there began to be awqāf established not with land, but cash. Individuals would chose to endow a certain amount of money as a waqf and stipulate that it be lent out to borrowers, with whatever profits coming from such loans being forwarded to charity. The first record of a cash waqf dates to 1423 in Edirne, but by the end of the fifteenth century, the practice was so common and widespread, that the majority of newly established awqāf came to be in the form of cash instead of land. Naturally, as a newly established practice lacking historical precedent, debate soon erupted among the jurists over whether such a practice was permissible according to Islamic law in the first place (Note: the issue of how money could be lent out while avoiding usury, ribā, was another jurisprudential issue entirely. This article will only address the debate over the establishment of the awqāf).

By the mid-sixteenth century when Ebū’s Suʿūd held the position of grand mufti, the debate had reached a boiling point and required an official judgement from the religious establishment. The result was an approximately 40 page treatise by Ebū’s Suʿūd in which he analyzed the legal theory behind awqāf and then offered his comments on the authority of a government to rule on such matters in the first place, his Treatise Regarding the Permissibility of Cash Waqfs (Risālah fi Jawāz Awqāf al-Nuqūd).

The Treatise

Ebū’s Suʿūd begins his treatise by analyzing the rulings of the early Ḥanafī jurists on whether a waqf has to be immovable (ie, land or buildings) or if it can be established with an initial investment of moveable goods such as animals or farm tools.

He notes that the eponymous founder of the school, Abū Ḥanīfa, considered any moveable waqf to be invalid. His two primary students are more permissive, however. He mentions that Abū Yūsuf allows for moveables to be a part of a land waqf. For example, farm animals or crops can be part of a waqf so long as the main part of the waqf is a parcel of land. Muḥammad al-Shaybānī is the most permissive, however. Allowing for any type of moveable waqf so long as it corresponds with local custom (taʿāruf). Ebū’s Suʿūd does note, however, that while there were varying opinions on the permissibility of moveable awqāf in general, all three of the early Ḥanafī jurists did not specifically permit a waqf to be established only with cash.

Ebū’s Suʿūd goes on to mention however, that Zufar, another of Abū Ḥanīfa’s students, was explicitly in favor of cash awqāf. He goes on to mention that there exists a narration in Bukhārī’s Ṣaḥīḥ from Ibn Shihāb al-Zuhrī about an individual who endowed a thousand dinars for orphans and that this narration could be used to support the permissibility of cash awqāf.

Yet despite this very explicit approval of the idea of the cash waqf from one of the founding figures of the Ḥanafī school combined with a narration found in perhaps the most important Sunni compilation of Ḥadīth, Ebū’s Suʿūd steers away from building his main argument on these narrations. Instead, he goes back to al-Shaybānī’s concept of local custom. He cites pre-Ottoman Ḥanafī jurists such as Muḥammad ibn Aḥmad al-Sarakhsī (d. 1090) and Burhan al-Dīn al-Marghīnānī (d. 1197) who echoed al-Shaybānī’s opinion that any type of moveable waqf is permissible so long as it is commonly accepted in any given area. He quotes another important pre-Ottoman jurist, the twelfth century Aḥmad al-ʿAtābī, as saying that while establishing a group of cows as a waqf is unheard of in his time and place (and would thus not be permissible), in another hypothetical context where such endowments are the norm, there would be no problem with it.

 

 

 

 

 

 

 

 

 

 

 

The gravestone of Ebū’s Suʿūd in Istanbul

Ebū’s Suʿūd thus argues that cash should be seen as just another type of moveable and that although such awqāf were unheard of in earlier Islamic history, the ubiquity of them in the sixteenth century Ottoman Empire would be reason enough, in accordance with the initial premise of Muhammad al-Shaybānī, to consider them valid in his context. Perhaps the most interesting aspect of his argument is that he chose to shy away from basing his argument on the explicit opinion of Zufar and the narration of al-Zuhrī as found in Ṣahīh Bukhārī in favor of cash awqāf and instead focused on the legal theory outlined by al-Shaybānī.

He recognizes that another objection could be made to his ruling in favor of the cash waqf however. Even if one would concede that al-Shaybānī allows for moveable awqāf and cash could potentially be considered just another moveable and the prevalence of the practice would allow for it in the eyes of numerous authorities in the Ḥanafī school, an interlocutor could argue that there is no reason to go through all those legal hoops when Abū Ḥanīfa himself would not have allowed for such endowments. Even if such an alternative opinion is feasible, why should the Ottoman state go with al-Shaybānī’s opinion over Abū Ḥanīfa’s?

Ebū’s Suʿūd’s response to such an objection is the core of his argument and it illustrates his thoughts on the relationship between the religious scholars and the sultanate. He calls on a very important maxim in Islamic law: that the ruling of a ruler lifts [juristic] dispute (ḥukm al-ḥākim yarfaʿ al-khilāf). The idea behind this maxim was that when jurists differ on an issue, the sultan has the prerogative to choose one ruling and make it the law of the land.

Ebū’s Suʿūd was hardly the first to employ this notion. Imām al-Shāfiʿī (d. 820) stated that a ruler has the authority to exercise his independent judgement in a case where there is no precedent in the Qurʾān and Sunnah and the jurists themselves would differ. The thirteenth century Mālikī jurist Shihāb al-Dīn al-Qarāfī (d. 1285) stated that when a ruler makes a determination on a case that is in dispute, it becomes mandatory for people to follow it. He adds that rulers only have the authority to do so in cases that are outside of the basics of worship and instead deal with issues such as “contracts, property, mortgages, charitable endowments, and similar things”. The fourteenth century Ḥanbalī scholar, Ibn Taymiyyah (d. 1328) stated that if a ruler is considered to be upright and knowledgeable about religious matters, it is mandatory for the entire population to abide by his rulings. The Andalusian scholar al-Qurṭubī (d. 1273) notes in his Tafsīr that an early Persian mystic, Sahl al-Tustari (d. 896), stated that Muslims are obliged to follow a sultan’s rulings, and that a sultan even has the prerogative to prohibit a mufti from issuing rulings if they blatantly contradict those of the sultan.

While Ebū’s Suʿūd does not directly quote any of the above jurists in his treatise, their influence on his conception of a sultan’s authority in religious law is unmistakable. He makes clear that since the cash waqf is an issue that the jurists do not all agree on, so long as the sultan choses a legitimate ruling from the jurists to support, it becomes incumbent on everyone in his jurisdiction to follow that ruling. As such, muftis could not refuse to allow cash awqāf to be established, nor could they revoke earlier endowments. This becomes an especially forceful argument considering that cash awqāf had been in use for over a century by the time Ebū’s Suʿūd wrote his treatise, allowed by five successive sultans from Murad II to Süleyman I. The practice had become so entrenched that it is doubly legitimate: both through the opinion of al-Shaybānī regarding moveable endowments and through the notion that when a ruler makes a ruling on an issue the jurists differ on, it becomes incumbent on all to follow.

Conclusions

Ebū’s Suʿūd was perhaps one of the most influential jurists in Ottoman history. His plethora of written works, his close partnership with Sultan Süleyman, and his ability to establish an efficient religious bureaucracy caused his influence on Islamic law in the Ottoman State to be felt long after his death in 1574. His conception of the relationship between the religious scholars and sultanic authority was a complex and interesting one. It is clear that he considered earlier figures in the Ḥanafī school, from the formative years of Abū Ḥanīfa and his students to later jurists like Burhan al-Dīn al-Marghīnānī, to be authorities that he could not simply overrule. He did not seek to set aside their opinions and create a new Ottoman interpretation of law that broke from past precedent. Simultaneously, he ingeniously used the inherent flexibility of Ḥanafī legal theory to allow for creative solutions to new problems, such as the cash waqf, that those earlier authorities did not directly deal with. In this way we see an Ottoman engagement with Islamic legal theory that defies commonly-cited notions of “religious” and “secular” law being in conflict. It appears that at the highest levels of the religious establishment, the Ottomans understood religious law and sultanic authority to be two realms that work together in governance, rather than as factions competing for authority in the Muslim world.

under  tagged  Further reading:

Atçıl, Abdurrahman. Scholars and Sultans in the Early Modern Ottoman Empire. Cambridge: Cambridge University Press, 2017.

Burak, Guy. The Second Formation of Islamic Law: The Ḥanafī School in the Early Modern Ottoman Empire. Cambridge: Cambridge University Press, 2015.

Ebū’s Suʿūd. Risālah Fī Jawāz Waqf Al-nuqūd. Edited by Aḥmad Shāghif Al-Bākistānī. Beirut: Dār Ibn Ḥazm, 1997.

Imber, Colin. Ebu’s-suʿud: The Islamic Legal Tradition. Stanford, CA: Stanford University Press, 1997.

Mandaville, Jon E. “Usurious Piety: The Cash Waqf Controversy in the Ottoman Empire.” International Journal of Middle East Studies10, no. 3 (1979).

 


Filed under: World

#PublicInterest #UKSC to rule next week on liability for child abuse by #LA foster carers!

Sat, 2017-10-14 00:27
Supreme Court to rule next week on liability for abuse by foster carers | Local Government Lawyer | 12 October 2017 The Supreme Court will next week hand down a key ruling on whether a local authority was liable for abuse suffered by the appellant at the hands of her foster carers, even though the council was not negligent in connection with the foster placement.

The background to the case of Armes (Appellant) v Nottinghamshire County Council (Respondent) was that the appellant had been in the care of the respondent local authority from the age of seven to eighteen.

Nottinghamshire placed the appellant into foster care with Mr and Mrs A between 25 March 1985 and March 1986, and with Mr and Mrs B between 23 October 1987 and 28 February 1988.

The appellant had been physically abused by Mrs A, and sexually abused by Mr B.

Her claim that the local authority was liable for the abuse she suffered was dismissed by the Divisional Court and the Court of Appeal.

A five-justice panel – comprising Lady Hale, Lord Kerr, Lord Clarke, Lord Reed and Lord Hughes – heard the case on 8-9 February 2017.

The ruling will be handed down on Wednesday, 18 October.

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Council not responsible for foster carers’ abuse of a child, finds Court of Appeal  | COMMUNITY CARE | 18 November 2015 | ChildrenFostering and adoptionLegalWorkforce Nottinghamshire could not have had enough control over the foster carers’ day-to-day actions to be found liable for “cruel and despicable” treatment

 

Photo: Voisin/Phanie/Rex Features (Posed by model)

A council was not responsible for the historic physical and sexual abuse of a child at the hands of her foster carers, the Court of Appeal has found.

Three judges upheld the decision of Mr Justice Males that Nottinghamshire council was not liable for the “cruel and despicable” treatment of Natasha Armes, between the years 1985 to 1988, in two foster placements.

Armes, now 38, waived her anonymity when appealing the decision.

Reasonable care

She had claimed the local authority had failed to exercise reasonable care both in the selection of two sets of foster carers, referred to as Mr and Mrs A and Mr and Mrs B, and in the supervision of these placements.

However, this was dismissed before the case began. Justice Males found her social workers had exercised reasonable care but, “unknown to them, physical and emotional abuse in the first case, and physical and sexual abuse in the second case, were taking place”.

Armes was said by Justice Males to have had an unhappy childhood which “cast a long shadow over her life.”

Physical and emotional abuse

In her early life she suffered physical and emotional abuse at the hands of her mother’s violent partner.

Between the ages of seven and eight she lived in a group foster placement in the care of Mr and Mrs A, along with several other foster children including her older sister.

Four of the children living there at the same time as Armes, now in their thirties, gave evidence that Mrs A had mistreated the children in her care. They alleged she beat them with her fists, a wooden spoon and bed slats, would barricade them in their rooms at night and punish them for soiling themselves.

In a subsequent placement, age ten, Armes alleged she suffered serious sexual abuse at the hands of her foster carer, Mr B, who would assault her in her bedroom and at bath time, and force her to perform sexual acts on him.

At the time Armes did not tell anyone what was happening.

Not negligent

Having found her social workers were not negligent in how they handled the case, Justice Males looked at whether the council was vicariously liable for the foster carers’ actions because they were in effect employed by the local authority.

Vicarious liability, where an organisation is indirectly responsible for someone else’s actions, even if they did not know about them, is usually applied to an employer-employee relationship.

But the appeal judges upheld Justice Males’ analysis that this could not apply in the case of a foster carer, because they could not be said to be acting as agents of the local authority.

Family life

Appeal judge Lord Justice Tomlinson said fostering by nature must be independent of close government control. Its aim is to provide children with the experience of family life.

Lord Justice Tomlinson said: “If foster parents had to check with the state before making ordinary day-to-day decisions, they not only would be less effective as parents, but they would be unable to deliver the spontaneous, loving responses and guidance that children need.

“The fact that foster parents must operate so independently in managing the day-to-day affairs of foster children…[indicates] that, in their daily work, they are not acting on behalf of the government.”

Private setting

He added the fact fostering takes place in a private family setting means social workers cannot supervise the placement constantly and so cannot prevent every instance of abuse that takes place in their absence.

It would not be realistic or good for the child to impose stricter monitoring, he said. Making councils vicariously liable in these situations might deter them from placing children in foster homes in favour of potentially less beneficial institutional settings where the council would have more control over what happened to them, Justice Tomlinson added.

“Governments can and do provide instruction and training to foster parents. They can and do put in place periodic monitoring. They can and do encourage social workers to develop communication between social workers and foster children.

“But given the nature of foster care, governments cannot regulate foster homes on a day-to-day basis,” he said. As a result, he said, the relationship between foster parents and local authorities was not close enough to make the one liable for the other’s actions.

‘Artificial distinction’

Armes contended it was artificial for the judge to distinguish between those abused in children’s homes and those abused in foster care.

But all three appeal judges found local authorities do have the right to delegate responsibilities for the care of a child to a foster carer, in contrast to a child placed in a residential setting for whom the council would always have ultimate responsibility, even if it did not run the home.

Delegated function

This is because foster care by nature has to be delegated since it is not a function the local authority can provide itself.

Justice Males said, and the appeal court upheld, there was a fundamental distinction between a placement with foster parents and a placement in a children’s home, because “it is inherent in foster care placements that the local authority does not have the same control over the day-to-day lives of children in foster care that it has over children in residential homes”.

Inherently risky

“That is a benefit to the children in foster care and is necessary in order to give them the experience of family life.

“As fostering necessarily involves a release of the control which the local authority has over a child, it may in a sense be regarded as inherently risky. But with the risks come the benefits which life in a children’s home cannot provide.”

Justice Males had added that a local authority would not be blamed for harm committed by a child’s natural parents while living with them, providing it had been carrying out the appropriate monitoring, and therefore could not be liable in the same situation with a foster parent.

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Abuse by foster parents – can the Local Authority be sued?November 12, 2015 | suesspiciousminds

 

Almost every case I write about is full of human tragedy and sadness, and this one particularly so. It involves a woman who when she was a child was placed in the care of foster parents, one presumes because it was decided that her own parents could not perform that task. That particular foster carer went on to physically and sexually abuse her. Dreadfully sad and unspeakably awful. I hope (but don’t know) that the foster carers have been convicted and punished.

The issue for this case was whether the woman could sue the Council who placed her there. They did not know of the abuse at the time, and there is no suggestion here that there was negligence on their part  (which would be either that the fostering checks hadn’t been carried out, or that they failed to make the visits and ongoing checks that were required by law at that time, or that they learned of the abuse and failed to act).  Councils can be sued for negligence, if any of those things were alleged and capable of being proven, but negligence is not the case pleaded here. The detail makes it plain that none of those failings were present.

Instead, it is something called “vicarious liability”, which in simple language means that an employer can be held legally responsible in some situations for things that its employees did. Vicarious liability can be a useful remedy where the organisation was not negligent, but where they have the necessary care and control over the employee’s actions. It is useful in particular because generally an employer (for example a Council) has more money (and insurance) than the wrong-doers themselves, who would not have the financial means to pay the compensation that the victim would really deserve.

So the fundamental question for the Court of Appeal here was “Can the Council be vicariously liable for criminal actions carried out by foster carers?”

NA v Nottingham County Council 2015   (It should be Nottinghamshire, but who am I to question the Court of Appeal?)

http://www.bailii.org/ew/cases/EWCA/Civ/2015/1139.html

Unpleasantly, a lot of the law around vicarious liability involves the sexual abuse of children, with the lead case being one about the Catholic Child Welfare Service Various Claimants v Catholic Child Welfare Society and Others [2012] UKSC 56[2013] 2 AC 1

 

“35. The relationship that gives rise to vicarious liability is in the vast majority of cases that of employer and employee under a contract of employment. The employer will be vicariously liable when the employee commits a tort in the course of his employment. There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied: (i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee’s activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) the employee will, to a greater or lesser degree, have been under the control of the employer.”

In this case, the critical element was (v) whether the employee (the foster carers) to a greater or lesser degree was under the control of the employer (the Council)

The Court of Appeal ruled unanimously that there was no vicarious liability here

The provision of family life is not and by definition cannot be part of the activity of the local authority or of the enterprise upon which it is engaged. Family life is not capable of being so regarded, precisely because inherent in it is a complete absence of external control over the imposition or arrangement of day to day family routine, save insofar as is provided by the general law or by ordinary social conventions. The control retained by the local authority is at a higher or macro level. Micro management of the day to day family life of foster children, or of their foster parents in the manner in which they create the day to day family environment, would be inimical to that which fostering sets out to achieve, for the reasons expressed by McLachlin CJ at paragraph 24 of her judgment. The control retained by the local authority, over and above the proper selection of foster parents and adequate supervision of the placement which is here not in issue, is thus irrelevant to the risk of abuse occurring during the unregulated course of life in the foster home. In the Catholic Child Welfare case Lord Phillips described the relationship between the Brothers and the Institute as “closer than that of an employer and its employees.” The manner in which the Brother teachers were obliged to conduct themselves as teachers was dictated by the Institute’s rules. There is in my view not the remotest of analogies to be drawn between that situation and the relationship of local authority to foster parents.

and

For vicarious liability to exist, there would have to be (1) the necessary relationship between the foster parents and the local authority and (2) the requisite close connection between that relationship and the abuse that they committed (see paragraph 21of Lord Phillips’ judgment in Various Claimants v Catholic Church Welfare Society, supra, and also paragraph 88 where he proceeds to apply what he has distilled from the authorities in the preceding paragraphs). I do not consider that the relationship between the foster parents and the local authority was of the required nature. It was not, to my mind, sufficiently akin to employment. Although the significance of control in the relationship has changed over the years, it remains a relevant aspect of the assessment of whether there is vicarious liability. Certain aspects of the care of a child by foster parents are, and were at the relevant time, regulated and the local authority have a supervisory duty over the placement, which can be ended if they consider it appropriate. But the essence of the arrangement is, just as it was at the time with which we are concerned, that the child is placed with the foster parents to live with them as a member of their family. The child’s day to day life is in the charge of the foster parents, who are expected to give the child as normal an experience of family life as they can. The degree of independence that this gives the foster parents is not indicative, in my view, of a relationship giving rise to vicarious liability.

There was a second part of the claim which was that this was a “non-delegable duty”  – i.e that it was the Council’s job to provide a child whom they are looking after with a safe home and they could not delegate that duty to the foster carers. This is a much more technical argument, and beyond the scope of this blog to explore in detail, but the Court of Appeal ruled that there was not such a duty here. That possible remedy arises largely from a case called  Woodland v Swimming Teachers Association and others [2013] UKSC 66 [2014] AC 537, decided in the Supreme Court and setting out five ingredients.

The Court of Appeal did not think that this case met all of those Woodland ingredients, and were also cautious about viewing the Woodland ingredients in isolation.

  • I do not propose to take my discussion of this point any further because it seems to me that consideration of the five features set out in Lord Sumption’s paragraph 23 should not be undertaken in a limbo. This is because the question of liability for non-delegable duty has got to be approached having very much in mind what he said at paragraph 25 of the Woodland case:

 

“The courts should be sensitive about imposing unreasonable financial burdens on those providing critical public services. A non-delegable duty of care should be imputed to schools only so far as it would be fair, just and reasonable to do so.”

Lord Sumption explained why he considered that no unreasonable burden would be imposed in that case. In this case, however, I am of the view that to impose a non-delegable duty on a local authority would be unreasonably burdensome and, in fact, contrary to the interests of the many children for whom they have to care.

 

  • I therefore find myself in agreement with Males J’s conclusion about this aspect of the case. I take into account the desirability of providing a remedy of substance for someone in the Appellant’s position. Nothing that I say here should be taken as suggesting that I am anything other than deeply conscious of the dreadful treatment she has suffered and sympathetic to the lasting impact that it must have had upon her. However, there are powerful reasons against the imposition of liability in circumstances such as the present ones.

  • It is a fundamental principle of social work practice that children are best placed in a family environment. If they cannot live with their parents, the majority of children are therefore likely to benefit most from a foster placement. Careful screening of prospective foster parents, training, supervision of the foster family, proper checks and balances in relation to the foster parents’ practice, and regular contact between social services and the child all play their part in ensuring that the child is safe with the foster parents. If, through the duty that it places upon the local authority, the law of negligence improves the chances of these safeguards being rigorously maintained, it is a very good thing. But, as this case demonstrates, even proper care on the part of the local authority cannot always prevent harm coming to the child from the foster parents. It seems to me that the imposition of liability for the actions of the foster parents by means of a non-delegable duty, operating in the absence of negligence on the part of the local authority, would be likely to provoke the channelling of even more of the local authorities’ scarce resources into attempting to ensure that nothing went wrong and, if such were possible, into insuring against potential liability (see paragraph 201 of Males J’s judgment). Particularly influential in my thinking is the fear that it would also lead to defensive practice in relation to the placement of children. Local authorities would inevitably become more cautious about taking the risk of placing children with foster parents and may possibly place some children who would otherwise have had the benefit of a foster home in local authority run homes instead, simply in order that the local authority can exert greater control over their day to day care. Males J dealt with this at paragraph 204 of his judgment. It was referred to also in the Canadian case of KLB v British Columbia [2001] SCR 404, in the context of vicarious liability, at paragraph 26.

  • The imposition of liability on the local authority might also give rise to another undesirable consequence for children. Important amongst the ways in which, under the statutes of the time, the local authority could discharge its duty to provide accommodation for the child was by allowing the child to live with a parent or relative (see section 21(2) of the Child Care Act 1980). If the local authority had a non-delegable duty towards a child in their care under a care order, making them liable for abusive actions on the part of a foster parent, there seems little principled basis for saying that they would not also be liable for such actions on the part of a parent with whom the child had been placed in this way. That sort of strict liability might well, it seems to me, affect the willingness of the local authority to take what would otherwise be seen as the manageable risk of allowing the child to live at home, thus reducing the chance of reuniting the child with his or her own family where that would, in fact, benefit the child. That is the point made by Males J at paragraph 206.

  • To these points, I would add that it is material, when considering a possible non-delegable duty rather than liability in negligence, to remember that the local authority has the powers and duties of a parent. I raised earlier my uncertainty as to what the precise implications of this are in the context of non-delegable duty. However, whatever they may be, I think it appropriate to bear in mind that a parent would not have a strict liability for harm caused by someone to whom he or she had entrusted the child’s care, for instance a nanny or, to take Burnett LJ’s examples, friends or relations. If the local authority’s powers and duties under statute are those of a parent, and where it is day to day care by a third party that is under consideration rather than strategic and management decisions on the part of the local authority, it is difficult to see why the local authority’s liability should be more onerous than a parent’s.

  • I acknowledge that although I am quite clear in my conclusion that the judge was right that the imposition of a non-delegable duty would not be fair, just and reasonable, I have not expressed firm views about the precise nature of the duty that should be considered to be at the heart of the non-delegable duty argument or about all of the five indicia of non-delegable duty. As Baroness Hale observed at paragraph 28 of the Woodland case, the common law is a dynamic instrument, but caution is needed in developing it. The law in relation to non-delegable duties is still evolving, as the Woodlandcase itself showed, and it seems to me preferable that I should only determine those matters which are essential to the determination of the appeal which, for the reasons that I hope appear from the preceding paragraphs, I would dismiss.

 

It does seem awful that this woman has no legal remedy for the awful things that were done to her – assuming that Criminal Injuries Compensation is not open to her (it may not be, due to the passage of time).  Nothing in this case affects a Local Authority’s liability under negligence – i.e if they had known of the abuse and failed to stop it, or it had been a foreseeable risk that they had failed to prevent through carelessness.

There are some hints in this judgment that it might go up to the Supreme Court – as it is largely interpretation of two distinct and recent Supreme Court authorities, that seems a distinct possibility.


Filed under: World

Checking Facebook – social workers and social media

Fri, 2017-10-13 22:24

suesspiciousminds

I happened to read the Community Care piece on social workers and social media this week. I think it is a good piece, it is here

http://www.communitycare.co.uk/2017/10/10/social-workers-use-social-media/?cmpid=NLC|SCSC|SCNEW-2017-1011

But I mentioned on Twitter that this paragraph troubled me

3. But debates continue about the impact of social media on the confidentiality of service users, and how information shared publicly on social media should be used by social workers, says Birchall. “If a social worker visited a home and saw a dangerous person who should not be present in the family home, they would be wrong not to act on this, but if they looked at a service user’s profile on social media and found out the same information there’s a sense that this breaches the service user’s confidentiality, even though the information is public. There are strong feelings on both sides of the argument. It’s a new world and we’re just…

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Fiyaz Mughal and Tell MAMA: Purveyors of Structural Islamophobia

Fri, 2017-10-13 20:19

“When the explanation for crimes without concrete evidence focusses on the identity of an already targeted minority group, history recalls that the results are often savage. With Mughal and Tell MAMA’s milieu delving deep into the heart of the hate industry, the question is asked, how can any Muslim entertain cooperation with such an organisation? This is particularly pertinent as Tell MAMA spread’s its tentacles into the Muslim community through community meetings. Questions ought to be also raised of Mend, which continues to platform the likes of Afzal.

Structural discrimination and Islamophobia continues to manifest in subtle and overt ways. It is for Muslims, and more so for credible organisations dedicated to eradicating Islamophobia, to recognise them and challenge them without compromise.”

CoolnessofHind

There is an entire industry built on the back of Muslim demonisation.  This “counter-extremism” industry utilises the rhetoric of preventing terrorism, but perpetuates structural terrorism against the Muslim minority through policies and rhetoric which have the cumulative effect of producing a “suspect community”. This reinforces Islamophobic stereotypes that Muslims are inherently, potentially violent unless “civilised” (assimilated) into “British values” as defined for everyone by neocons.  Whether victims or criminals, it is their culture and religion which is to blame. It is a demonising narrative that has recently subsumed into its toxic discourse the attacks Muslims are currently enduring.

Muslims have been experiencing an increased intensity of anti-Muslim hate over the years and through various rhetorical and physical transformations, from the Paki-bashing by skin-heads, BNP, EDL and now Britain First and National Action, to the elderly man/woman walking across the road whilst angrily pointing a finger at a veil mumbling – like Sayeeda Warsi 

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#Apartheid #TimolInquest Why the #Truth about the death of anti-apartheid activist matters!

Fri, 2017-10-13 10:57
Why the truth about the death of anti-apartheid activist matters | | AlJazeera | 13 October 2017

Durban, South Africa – For almost 50 years, they claimed he had jumped to his death.

On Thursday, 46 years later, the Pretoria High Court put the matter to rest. Judge Billy Mothle ruled that Ahmed Timol, an anti-apartheid activist, had not jumped out the window of the 10th floor of a police station in Johannesburg.

Timol, 29 at the time, had been pushed out.

“Timol did not jump out of the window of room 1026 but was either pushed out of the window or from the roof of the John Vorster Police Station,” Mothle said. “Thus he did not commit suicide but was murdered.

“The sub-standard and sloppy manner in which the investigation of Timol’s death was conducted, supposed the view that there was clear intent to cover up the incident through a fabricated version of suicide.”

Imtiaz Cajee, the nephew of Ahmed Timol, poses with his book, Timol: A Quest for Justice, at the High Court in Pretoria, South Africa [AP]

Following the judgement, Mothle ordered that Sergeant Jan Rodrigues, considered the last person to have seen Timol alive and who admitted to being part of a cover-up, be investigated for murder.

Who was Ahmed Timol?

Timol was an anti-apartheid activist from Johannesburg. He was a school teacher and a member of the South African Communist Party. After threats to his safety, Timol fled to London in 1967, and he later underwent armed training in Moscow before returning to South Africa as part of the ANC’s armed wing.

He was subsequently picked up by the security branch in October 1971 and interrogated, tortured and murdered at the notorious John Vorster Police Station in central Johannesburg.

Between 1970 and 1990, eight people who were detained at the police station died. It has been described by former detainees as the “pinnacle of torture chambers”.

An inquest in 1972 concluded that Timol had committed suicide, a stance the apartheid government has consistently held. Timol’s family never accepted that version and have consistently accused the apartheid government of murder.

According to a report by the Truth and Reconciliation Commission, 75 deaths were recorded in detention during apartheid, but not a single police officer was held responsible or officially tried.

In 2015, Timol’s nephew, Imtiaaz Cajee, approached the National Prosecutions Authority to reopen the case.

The verdict is an important one.

First and foremost, it provides closure to Timol’s family.

The verdict sheds light on the extent of apartheid’s cruelty, exposing its brutality as not just limited to physical violence, but home to a vast machinery of concealment and desecration of character that is complex and multifold.

Timol’s murder is but one of many stories of injustice hidden by apartheid, and left mostly untouched since 1994, lest it shake up the fragile democratic experiment. The Truth and Reconciliation Commission brought solace, but not justice. For instance, when Hawa Timol testified in 1996 about the death of her son, none of the perpetrators came forward. She died a year later.

This has come to define much of the selective amnesia regarding South Africa’s past.

In many ways, the failures of the current ANC-led government are being used to reversion the tremendous impact of colonialism and white-minority racist rule in South Africa.

If anything, the judgement brings perspective: It may be time to explore some of the more obscure, lesser-known details of apartheid’s crimes. It may be very necessary if we are to understand where South Africa is headed.

SOURCE: AL JAZEERA

 

 


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#SouthAfrica #TimolInquest: Verdict gives hope to #apartheid victims!

Fri, 2017-10-13 10:50
Timol inquest: Verdict gives hope to apartheid victims | Pumza Fihlani | BBC News, Johannesburg | 12 October 2017

The inquest into the 1971 death of anti-apartheid activist Ahmed Timol has found that he was murdered, shattering a five-decade-long claim by security police that he had committed suicide.

In a packed courtroom, Judge Billy Mothle ruled that he “was pushed” out of the window of the 10th-floor building where he had been detained by the apartheid police.

Applause rang out in court at the end of his ruling – vindication for the Timol family at last.

Ahmed Timol’s nephew, Imtiaz Cajee, testified to the pain of losing his uncle.

But what is the significance of the ruling for South Africa and other families who have lost loved ones in a similar way?

“After this ruling, we are hoping to see large-scale investigations,” says Lawson Naidoo, head of the Council for the Advancement of the South African Constitution.

Many of those who were with Mr Timol at the time have since died but the judge found that they were “complicit” in his death and recommended that prosecutions should follow because perjury had been committed by some former state security members who testified at this hearing.

And so for the first time in the history of its atrocities, it seemed as though the apartheid system of white minority rule was on trial in South Africa.

Reliving the past

The inquiry offered a rare glimpse into the gruesome workings of the racist regime – and demanded answers.

For those brief few weeks it was as though Mr Timol was speaking for himself – and on behalf of those who died like him.

http://emp.bbc.co.uk/emp/SMPj/2.14.6/iframe.html Media captionWhat was apartheid? A 90-second look back at decades of injustice

Officially, police records say he leapt to his death from the infamous John Vorster Square, now called Johannesburg Central police station.

Mr Timol’s family had for years campaigned for a new investigation, saying he was not “one to give up” – that he would have never taken his own life.

Many other families here have for decades struggled to make peace with the deaths of their loved ones – largely due to the secrecy around it.

Activists say that between 1963 and 1990, at least 73 anti-apartheid fighters people died in police detention, in some situation their deaths bore an uncanny resemblance to that of Mr Timol.

Still no-one was ever called to account – the murderers were faceless, protected by the state even after the advent of democracy in 1994.

For the Mabelane family, this case has inspired hope. Matthews, then aged 23, was said to have jumped to his death, like Mr Timol.

Image copyrightAFPImage captionLasch Mabelane and his father 95-year-old Phillip hope more investigations will follow

His older brother Lasch Mabelane tells me the family has for decades been haunted by not knowing what really happened to Matthews.

“The day before he died, the police came to my parents’ home and told them they need to make an appointment if they want to see him. They said: ‘Do you know you have a naughty child?’ and said they would discipline him,” he says.

“Many people like my brother supposedly jumped from the 10th floor, it’s the same story – the same floor,” he adds.

Other activists who died at John Vorster Square police station:

Wellington Tshazibane: Found hanging in his cell on 11 December 1976

Neil Aggett: Found hanging in his cell on 5 February 1982

Ernest Dipale: Found hanging in his cell three days after his second detention, died 5 August 1982

Stanza Bopape: Died of a heart attack after being subject to repeated electric shocks, on 5 June 1988

Clayton Sithole: Found hanging dead in his cell on 30 January 1990

“We’ve never believed that he killed himself, he loved life and loved his family. The pain of losing him changed all of us, especially my parents.”

His father, Phillip Mabelane is 95 years old and a widower – he believes his wife died of a broken heart.

“Our child died in a painful way. We were left with so many questions and couldn’t even ask them. This trouble my wife until the end,” he says.

“The apartheid police were known to be violent, you didn’t ask questions, you just accepted what you were told. How can you ever find peace in a situation like that?” he asks.

Taking secrets to the grave

Peace and stability in this country were paid for in blood and an unspoken vow by those who worked for the state to take secrets to the grave.

This country’s vast landscape is dotted with the unmarked graves of apartheid activists. Dinner table conversations frequently drift into stories of exiles who disappeared without a trace – leaving behind a trail of unanswered questions.

Image copyrightAFPImage captionJohn Vorster Square, now known as the Johannesburg Central Police Station was the sight of several assaults and deaths

The Timol inquest could forever change that legacy.

This was the first inquest in democratic South Africa to specifically look into apartheid deaths in police custody.

While an investigation into Mr Timol’s death was conducted at the time, many had believed it was a cover-up for the abuses that were happening at the height of white minority rule.

The long-awaited proceedings took weeks to conclude but had many glued to TV screens as high-ranking security police officers, men who until now had lived in the shadows, testified about the torture of activists at the height of the fight for freedom here.

Their actions included severe beatings, electrocution and at times crushing testicles.

In August fresh eyes began looking at the evidence led in court.

Some of the expert witnesses testified that some of Mr Timol’s injuries, his cracked skull, were not consistent with the conclusion the apartheid police had reached at the initial inquest back in 1971.

Files with evidence of his bludgeoned body told tales of assault, witnesses testified to seeing Mr Timol days before his death being escorted by the police in the corridors of the police station and that he could barely walk.

These records are some of what led to Judge Mothle’s historic findings.

Image copyrightAFPImage captionMany protests have been staged calling for an investigation into Steve Biko’s death

Mr Timol isn’t the only activist to die under suspicious circumstances – Steve Biko also died while in police detention, supposedly because he had been on a hunger strike. No explanation was ever given for the bruises on his body.

In the minds of many, Mr Biko was murdered.

Nkosinathi Biko, through the Steve Biko Foundation, says their research puts the deaths of high-profile detainees, including his father, at 160.

“Many of them have as a cause of death, suicide or slipped on a bar of soap, that sort of thing. So uncovering the truth is important not only for those families but for the country. It should be a national record,” he told the BBC.

There have been attempts at unearthing the truth in democratic South Africa such as the Truth and Reconciliation Commission (TRC).

However, in recent years the TRC’s failure to compel apartheid loyalists who testified at the commission to “tell all” has come in for increasing criticism, along with granting perpetrators amnesty for their testimony.

While the hearings were hailed as a necessary process to help move the country into a peaceful democracy, many said it denied justice to victims of apartheid.

In the minds of many, justice will only come if those behind the murders and torture are prosecuted and punished for their crimes.

“You cannot forgive what you do not know, what was never acknowledged. The people who killed our children must be made to tell the truth and face the consequences of their actions,” says Mr Mabelane Snr.

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Open Letter To Cafcass & NSPCC On The Eve Of Families Need Fathers Conference

Fri, 2017-10-13 10:01

Any deviation from ‘good-enough parenting,’ typically to fetter a capable parent, should never be tolerated – this is the root cause of defathering (and demothering) of children.

Researching Reform

Legal Action For Women and Women Against Rape, have written an open letter to Cafcass and the NSPCC a day before they are due to take part in a Families Need Fathers Conference looking at Parental Alienation.

The letter invites the organisations to withdraw from the event, where representatives have been asked to speak.

The letter is added below:

OPEN LETTER to CAFCASS and NSPCC re your PARTICIPATION in a conference run by FAMILIES NEED FATHERS (FNF)
Saturday 14 October

We understand that you are speaking at this FNF conference on parental alienation. You must be aware that FNF have consistently attacked women.

Must we refresh your memory? As long ago as 1994, during a debate on the Child Support Agency, MP Glenda Jackson reported in Parliament that FNF advised fathers who were not allowed access to their children to ‘kidnap them. If that failed and nothing else could…

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THE NEW PRE-ACTION PROTOCOL FOR DEBT CLAIMS

Tue, 2017-10-10 23:10

“At first glance it might appear that the changes will significantly weaken the position of a business claiming a debt, as the guidance puts a greater burden on creditors to provide historical information.

My view is that creditors will be more determined to issue court proceedings and the changes to the protocol will simply result in businesses seeking legal advice at an earlier stage.

Creditors will no doubt tighten up their internal processes so that it becomes harder for an individual to borrow money or get credit.

Whilst the aim of the Protocol may have been to reduce litigation and provide extra protection for consumers I think the reality is more bureaucracy, more costs and more litigation.”

Kerry Underwood

By Anna Patsalides, Solicitor, Underwoods Solicitors

On 1 October 2017, a new pre-action protocol for debt claims came in to force which can be found here.

The Protocol describes how the court expects parties to act before legal proceedings are commenced.

This will apply to business creditors seeking to recover debt from an individual or a sole trader.

The new protocol increases the amount of work which a creditor must do, even in a simple debt claim.

The changes in the protocol will mean that the court will be able to look at both parties behaviour before a case is issued at court.

The purpose of the new pre-action protocol is to encourage parties to communicate and for information to be exchanged at an early stage to avoid the need for court proceedings.

The aim of the new changes is to keep costs down so that they are reasonable…

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The muslim foster carer case again: what else has emerged? – Family Courts Reporting Watch

Tue, 2017-10-10 23:06

Inforrm's Blog

We have covered the case originally headlined “Christian child forced into foster care” on a number of occasions. Our earlier posts can be found here :

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Black Lives Matter and the Facts of Life

Mon, 2017-10-09 16:08

Envisioning The American Dream

At what age does an African-American learn that “my life doesn’t matter?” These children will grow up to be the most feared, stereotyped and misunderstood in society.

At what age does a black boy learn he is perceived as menacing and dangerous?

At what age is he told of systemic racism and state sanctioned brutality against someone who looks just like him?

At what age does an African-American learn that “my life doesn’t matter?”

These Are the Facts

The facts of life are vastly different if you are black or white.

There comes a time when every Black parent must have “the talk” with their child. No amount of education, manners or talent will protect them from the facts of life of being Black in America..

These are conversations that  white people do not have to have with their children.

Those were facts of life I would learn late.

1967…

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Section 20 Consent Forms For Parents and Children – Get Yours Here.

Mon, 2017-10-09 09:30

Researching Reform

Together with child rights campaigner Michele Simmons, Researching Reform has produced two consent forms for families and children thinking about entering into a S.20 Agreement.

Michele, whose idea it was to create these forms, wanted to be able to offer parents and children the opportunity to fully inform themselves about these agreements and to protect them from their more controversial, and illegal, use – coercing families to place children in care.

Section 20 Agreements are intended to allow children access to temporary accommodation for a variety of reasons, including situations where parents through no fault of their own are unable to care for their child at that time, and instances where communication breaks down between parent and child. Their purpose and function are outlined in the Children Act 1989.

These agreements have become infamous for their misuse. Their implementation is now being investigated after it emerged that councils were removing…

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Question It!

Mon, 2017-10-09 09:25

Is the imminent supreme court appeal a belated warning bell for those inhabiting a parallel universe?

Researching Reform

Welcome to another week.

Controversial S.20 Agreements, meant for placing children in local authority accommodation where child protection concerns exist but which have been illegally used to take children into care, are now on the Supreme Court’s radar.

After the Court of Appeal ruled that there was no duty on councils to get parental consent for these agreements, the family involved in this case appealed the decision, and the Justices at the Supreme Court have now granted permission to challenge the ruling.

Section 20 Agreements have been so badly abused by social workers that in April of this year an investigation was launched, which aimed to look at how and why these agreements were being used to coerce families and children into child protection proceedings.

The ruling by the Court of Appeal also contradicts the President of the Family Division’s own guidelines, released in 2015, which explicitly…

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A reply to Lord Adonis on sentencing, prisons and judges

Mon, 2017-10-09 09:18

The Secret Barrister

I’ll be honest, out of all the ‘robust debates’ I’ve had online about criminal justice and sentencing of offenders, I would not have expected the most frustrating, fiery and ill-informed to be with someone advocating for less use of prison. It takes a special talent, I would suggest, to present an argument in such a way that you manage to alienate those who agree with your conclusion. Arise for your special badge, Lord Andrew Adonis, former Head of Policy at Number 10 Downing Street and erstwhile Transport Secretary.

The past few days have seen Lord Adonis stagger around Twitter swinging aimlessly at lawyers and judges like a punch-drunk case study on a late night police reality TV show. Every effort to gently usher him into the back of the van for some calm, reasonable, evidence-based discourse is met with another wild lunge towards camera – he has now blocked nearly…

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#Faith #HamzaYusuf at 2017 #TempletonPrize Ceremony for Dr. Alvin #Plantinga

Thu, 2017-10-05 11:07
2017 Templeton Prize Ceremony for Dr. Alvin Plantinga
By conceptually comparing the criminal with the civil standard of proof in law, he insightfully repudiates atheistic nihilism with trusting open-mindedness, upon which hinges any faith-based worldview: “Philosophers, to whom the world never grows old, and, children, to whom the world is so new, live … in wonder!” Classic!

“1. We face so much, in this our world, it’s hard to take it in. 2. In reality the truth be told, we only face our sin. 3. A battle rages in our souls and each must play his part. 4. Some will use the head to fight, while others use their heart. 5. The belligerence in every soul will end when we find peace. 6. But fight we must, with heart and head, for this plague to ever cease. 7. The heart, the head, so must we choose, might there be another way? 8. In Alvins’ books, it’s clear to see that both are on display. 9. On every page he rules the day and does so with such ease. 10. But a stumbling block for lesser minds, is that daunting Plantiganese. 11. May God bless this heartfilled (?) heady man, may his pen overcome their sword. 12. May his truth live on in the books he wrote, in defence of the guiltless Lord. 13. And for those who deem his thought unsound, or that his beliefs are odd, they’ll have to wait till Judgement Day, to have it explained by God.”
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