- J (Child) [2013] EWCA Civ 1685: [2013] EWCA Civ 1685
The matter is a grim one – a mother, “M”, seeks custody of her now 11 year old son, “K”. K has been with a foster home for approaching two years. K was seized by child protection services.
M is an alcoholic and abuses prescription drugs. She did not shield her child from those activities – for example at age six K called emergency services when his mother passed out as a consequence of substance abuse. M’s conduct had its ups and downs. So did K's. A critical and dramatic incident is recorded at para. 18, where M left K with a babysitter, climbed up a cliff with a bottle of brandy and what were arguably two suicide notes. She drank, self-injured, then telephoned K. During their telephone call M dropped the phone, and fell off the cliff, causing serious head injury.
K was placed in foster care. Around this point M hooked up with IM, who appears to have been the source of her Freemanish concepts and arguments. These are described in passing by Lady Black:
M also applied to have the hearing judge recuse himself: para. 24. It appears M and IM tried to ‘drum up support’, because an injunction was issued to prevent M and IM from publicizing the situation with K: para. 23.2. M would have been entitled to public funding for legal representation but, after a period when she was represented, she began to act in person and she chose to represent herself before Judge Bromilow at the final hearing, assisted by IM who was her fiancé at the time. IM was still assisting her when McFarlane LJ considered the matter on 22 October 2013. However, by the time of the appeal hearing before us, M had parted company with him and was assisted by two new McKenzie friends. Her approach orally was very different from that which had been evident from the plentiful papers which she had provided for the appeal.
3. The paperwork reflected that, as had also been the case in front of Judge Bromilow, M and IM considered that they were claiming to proceed under "Common Law Jurisdiction and Authority". They considered that this affected the proceedings in a number of ways. For example, in M's skeleton argument for the appeal she said, speaking of the proceedings at first instance, that:
Another feature was that M treated the name by which she would normally be known as her "legal fiction" and insisted that she be addressed by a rather differently formulated version of it. Furthermore, she and IM did not consider they were bound by orders to which they did not consent."we established Common Law Jurisdiction prior to the hearing and Mr Bromilow confirmed he was on his Oath before the hearing began. Therefore, as a Court de Jure was in effect, no consent means Mr Bromilow had no authority"
4. The local authority submitted to us that M's then adherence to this notion of Common Law Jurisdiction and Authority had contributed to the case being challenging to manage. I have no difficulty in accepting that submission. The judge described the material sent to the court by M by way of evidence as "voluminous" (§19 of the judgment) and that description is corroborated by the bundles supplied to us, containing both the original material that formed part of the care proceedings and new material generated for the appeal.
As noted by the Court, M abandoned this approach on appeal, and acknowledged her prior litigation strategy was an error:
[Emphasis added.]5. M freely acknowledged to us that she had been under IM's influence and had developed misguided beliefs. She put this down to her vulnerability following an accident she had had, about which I shall say something later. She accepted that her reference to "Common Law" was wholly inappropriate and she said she could understand why objection had been taken to IM. She made a prepared oral submission in support of her appeal which was in a distinctly different tone from that adopted in her written submissions and in which her former beliefs played no part. She also abandoned some of her grounds of appeal. This was sensible given that they could not have succeeded. The effect of M's new constructive approach was to enable us to concentrate on the issues that required determination.
So it seems that Lady Black has generally but indirectly rejected the following common Freeman / OPCA concepts in para. 3:
- 1. there is a separate "common law" jurisdiction, and that litigation in that jurisdiction excludes court action;
2. state action is only authorized where a person consents to that action; and
3. that state action can only be directed to a 'strawman'-type "legal fiction".
A nasty business. It is clear from the judgment that M was and very likely remains a troubled person. Also obvious is the care she has for her child. M obtained no benefit from Freeman-on-the-Land litigation strategies, and it seems she knows that.
Unfortunately there is an increasing incidence of family law disputes in Commonwealth jurisdictions where desperate parents resort to these kinds of tactics. Child seizure appears to be a particular flashpoint. Reframing these confrontations in a Freeman context simply does not help, and instead only appears to further escalate the conflict between parents and state actors.
SMS Möwe
