About the Family Law Week blog

The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.

The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.

Friday, 14 December 2007

Planning for children?

Ed Balls announces the new Children's Plan with a huge quantity of measures designed to support families through extra child care, greater liaison between schools and parents and help to parents to support their children through education, funding for activities for young people, information for parents about child development and so on. As part of this initiative there is also to be a review of the CAMHS (Child & Adolescent Mental Health Service). This is especially welcome. I don't know whether I have just been unlucky but in my experience this service is a very difficult one to access both because of waiting lists and because of an apparent reluctance to offer a service whenever there is any prospect that someone else might do so.

Tis not the season to be violent

Here's a cheery Christmas thought from the Home Office: there about a third more incidents of domestic violence related assault recorded on Christmas Day compared to the daily average. In a press release the Home office have publicised a new domestic violence enforcement campaign running from today until 6 January which they are supporting with extra funding, some of which has gone to police forces to provide additional resources and materials. Refuge, which in partnership with Women's Aid runs a 24 hour national Domestic Violence Freephone Helpline (0808 2000 247) welcomes the initiative though of course points out the the problem of domestic violence is for life, not just for Christmas.

Lawyers' Hall of Fame

The Lawyer is celebrating its 20th anniversary and as part of the festivities it has launched a Lawyers' Hall of Fame . Three great family lawyers are on the list: Lady Justice Butler-Sloss, Baroness Hale & the late David Hershman QC. You can post comments on the site & make your own nominations. Maybe we should have a hall of fame specifically for family lawyers? On my list would have to be Professor Cretney, Richard White, David Bedingfield (for his wonderful books The Child in Need: Children, the State & the Law & Advocacy in Family Proceedings), Mr Justice Wall (the case management king), David Burrows & Roger Bird to name but a few. It might also be interesting to have a separate list for non-lawyers who have made a special contribution to family law: Professor Tim David, Julia Brophy, Angela Cannings, Matt O'Connor (founder of F4J)??? Who would be on your list?

Thursday, 6 December 2007

A Whole New Meaning to Her Majesty's Pleasure?

According to the Times , in a case reminiscent of the Catherine Tate show character and her relationship the man on death row, the European Court has decided that in refusing IVF to a prisoner serving a sentence for murder and not due for release until the wife he met through a pen pal network (when she herself was a serving prisoner) will be 51, the UK is in breach of the Human Rights Convention. I will admit to being unashamedly pro-Europe but truth is sometimes stranger than comedy.

Two Sides to Every Story

Further to the earlier post Sow & Ye Shall Reap about the seemingly uncharacteristic vigilance of the CSA in pursuing a sperm donor to lesbians who wanted children, the Times reports that the man in question actively sought and for a while enjoyed a rather more developed role as a father than the original report might have suggested. I can't believe I fell for another Evening Standard headline!

Wednesday, 5 December 2007

Unreliable Evidence

In case you missed Radio 4's Unreliable Evidence presented by Clive Anderson you can listen again from the linked website. Today's broadcast was all about those public funding cuts!

House of Lords decides not to return children to Zimbabwe

As announced on the main website, the House of Lords' decision in Re M & anor [2007] UKHL 55 has now been published. During a contact visit, mother removed 2 girls aged 13 & 10 from Zimbabwe where they had been living with their father (both parents were from Zimbabwe) and took them to the UK without telling father where they were for some time. He for his part took nearly 2 years to issue proceedings for their return. Under the Hague Convention, where proceedings are not begun for over a year, there is a duty to return the children, but not forthwith, unless the children are settled in a new environment or a parent has acquiesced or there is a grave risk to the children's physical or psychological welfare or otherwise the child would be placed in an intolerable situation or the child objects to being returned and is of an age and maturity where their wishes & feelings should be determinative or there would be a breach of the Human Rights Convention if the child were returned. The court considered the competing authorities on the proper approach when a child is found to be settled in a new environment and whether this took the case outside the Hague Convention altogether. The House of Lords concluded that a settled child might nonetheless be returned to the country of origin within Convention procedures, but that the court could exercise a discretion both as to whether to order summary return or whether to carry out a full investigation before doing so, and it was not right to import an additional test of exceptional circumstances into the Convention articles which already provided a limited number of exceptions. On the particular facts of the case, the children no longer wanted to return (they had done so at first but the father had failed to act on their wishes), they feared a further relocation to Zambia, they were settled in the UK and if they returned to Zimbabwe they would not be able to regain access to the UK. The court did not accept that the regime in Zimbabwe was such that any child would be at risk there, but found the children's fears on this score to be understandable. The court commented that settlement cases were the most child-centric and approved the practice of the separate representation of the children in such cases.

Tuesday, 4 December 2007

Ruthie's Law on the arrogance of the LSC

From another blog that is always worth reading, though it generally has nothing to do with family law*, comes a caustic comment or two about the LSC victory (or was it defeat?) in court (see To the Victor the Spoils).

* (The author, Mistress Ruthie is a solicitor-advocate specialising in fraud, regulatory crime, road traffic law and licensing).

The Map of Gaps

End Violence Against Women is a ground-breaking campaign representing a coalition of organisations such as Amnesty International, Rape Crisis & Women's Aid, aiming to raise awareness of domestic violence issues. EVAW and the new Equality and Human Rights Commission, has just published a report, Map of Gaps, showing graphically, the postcode lottery of violence against women support services. Every year, 3 million women in the UK suffer rape, trafficking, harassment, forced marriage, domestic violence or some other form of gender-based violence. Specialised services, such as Rape Crisis Centres and refuges, are essential to help women deal with the immediate crisis, support them through the justice system, and help them move on with their lives.

EVAW's point is that provision is patchy in most parts of the UK and in some places there are no services at all. We have already witnessed a tide of closures and many more face closure because of a funding crisis in the sector.

The Map of Gaps shows:

A third of local authorities in the UK have no specialised support services;
Most women in the UK have no access to a Rape Crisis Centre;
Less than one in ten local authorities have specialist services for ethnic minority women that would address forced marriage, female genital mutilation and crimes in the name of honour amongst other issues.

You can see the Map of Gaps as a pdf file here .

EVAW and the Commission are calling for the government and local authorities to take urgent action to stem the tide of closures and ensure that all women have access to these vital services.

"It's time to plug the gaps", says Liz Kelly, Chair of End Violence Against Women, "It is simply too costly to continue with the current situation. Women deserve access to quality support services."

Woman's Hour on Tuesday morning featured interviews about the EVAW campaign as well as an interview with Womankind whose recent research has highlighted the prevalence of attitudes amongst school pupils that reinforce violent behaviour.

Southall struck off

The GMC has decided that Professor Southall is guilty of serious misconduct and struck him off the medical register. This story is widely covered including by Sky News , the Guardian , & the Times to name but a few.

After the verdict, Jacqueline Mitton, the chairwoman of the panel, told him: “Your multiple failings over an extended period caused the panel great concern. . . . in all the circumstances the panel has concluded that you have deep-seated attitudinal problems and that your misconduct is so serious that it is fundamentally incompatible with your continuing to be a registered medical practitioner."

Patricia Hamilton, President of the Royal College of Paediatrics & Child Health, has said that the college is saddened & disappointed by the verdict. Health care professionals have a duty to act if they fear that parents have harmed their children and she expressed concern that the verdict may put paediatricians & social workers off performing child protection roles.

I do not understand this reaction. When one analyses the misconduct found against Professor Southall (by an independent tribunal before which he was more than competently represented, not only in this round but previously in 2004), it is difficult to see how this could be characterised as a health care professional acting on legitimate concerns in a properly professional manner. He has now twice accused a parent of murder without any proper evidential foundation and kept secret files on children containing materials which were then not available to their treating doctors. He previously accused Sally Clark's husband of murder, based on a tv interview alone and when he was prohibited from conducting child protection work. He did not at the current hearing or previously and has not in any interview expressed any remorse or regret about his working methods. Approaching a case with respectful uncertainty, as recommended by the Climbie enquiry, does not mean leaping forward and making accusations of ill-treatment, simply that one keeps an open mind and examines all possibilities. Professor Southall was rebuked by Mr Justice Collins for not having the sense or humility to withdraw his seriously flawed allegations and he just does not seem to be listening to anyone.

Numerous doctors and professionals are the subject of disciplinary tribunals and many have had an otherwise impeccable track record before their fall from grace. By all means, let us acknowledge the previous good track record, where it exists, but it cannot be right to pretend that this makes up for a serious professional misdemeanour, particularly when it strikes at the very heart of the professional role. There is no reason why Southall's disciplinary fate before his profession's panel should put off competent professionals from doing their job in child protection, even if, try as hard as they might, they make the odd mistake from time to time. Experts often say in care proceedings that they are unable to work with parents who will not acknowledge any wrongdoing. It is this failure to acknowledge any failure that has been Southall's undoing.

Monday, 3 December 2007

Sow & Ye Shall Reap

As a curious footnote to the previous post calling into question the efficiency of the CSA they seem to have fallen over themselves to track down a 'father' who helped two lesbians to have a child by donating his sperm. Five years later the chickens (or is it the eggs) have come home to roost and the CSA is pursuing him for maintenance for the resultant child. He is bringing a case to try to establish that he should not be responsible. In the meantime the HFEA are reminding men that donors who operate outside of authorised clinics have no legal protection from the uncharacteristically persistent reaches of the CSA. The Evening Standard reports.

Family Law Blogs (aka Blawgs or should it be Flawgs)

Naturally this blog is set to become the first among equals of all UK family law blogs but if you have blinked in the blogosphere you may have missed one or two of this growing clan.

Delia Venables has published a piece about new family law blogs in the UK in her internet newsletter for September / October 2007. Click here to to subscribe to her newsletter .

The first and mother of them all is Family Lore by Chatham based solicitor John Bolch. John covers a variety of topics of interest to lawyers & non-lawyers with news & comments usually posted daily. Posts this month included : in-court conciliation, Government funding & the paramountcy principle, Hill v Haines & Mr Justice Singer.

I write a blog - Bloody Relations - mainly aimed at non-lawyers explaining aspects of UK family law and comments on family law topics in the news. Posts this month have continued a continuation of a series on parental responsibility, comment on experts, a series on missing words and orders in family cases. Obviously fantastic.

Pink Tape is written by a ‘mainly family law barrister’ (soon to be blogging here!) and this month she has been exercised & excited about the new guidance on Justices' Reasons, adoption & father's rights & Mr Justice Singer.

Solicitor Lynne Bastow specialises in divorce and her Divorce Solicitor
blog
is a nice mix of top tips for dealing with the emotional side of it together with legal pieces. This month she has covered whether divorce will make you happier, can a holiday save a marriage, hanging on to your ex & mediation.

Solicitors’ firm Spain Williams run a blog called Family Matters which has good advice about aspects of matrimonial law. Posting is not that frequent but worth waiting for and this month has covered divorce on the grounds of desertion.

Judith Middleton is a Darlington based divorce lawyer whose blog Judith's Divorce Blog is quite personal & fun with pieces this month on the Christmas shopping, her friend Constance's divorce, that modern phenomenon, the divorce party & the divorce & remarriage of Lord Haw Haw.

Diane Benussi is a solicitor specialising in divorce and writes a lot about the emotional aftermath of divorce & separation & how to deal with divorce proceedings. The Benussi Blog
posted this month about how to cope with Christmas, why people want to be married in spite of the divorce rates & what to do if your ex does not want to see the children.

Marilyn Stowe, of Stowe Family Law, writes the Marilyn Stowe blog for lawyers & non-lawyers. She has posted recently on past cases, suitably anonymised, Heather Mills & the Saga Divorce.

Sophia Cannon, a barrister at Tooks Court, is the author of The Paramount Principle . Only occasional postings & nothing since October when she posted about the sexual exploitation of children and being a television lawyer. More please!

Clarendon Chambers produce a Family Law Team Update with comments on legislation and case law. The blog seems to have come to a bit of a halt at the beginning of October but what is there is interesting.

Sunday, 2 December 2007

Paying for children: never never?

Former Law Society Chief Executive, Janet Paraskeva, has been appointed as the Chair Designate of the Child Maintenance & Enforcement Commission to be established by a Bill which is up for its Third Reading this week. See the announcement by the CSA .

The aims of the CMEC & the Bill are to:

  • Establish a new child maintenance delivery organisation, to be known as the Child Maintenance and Enforcement Commission, to deliver child maintenance and replace the Child Support Agency.
  • End the requirement that parents with care who claim certain benefits are automatically treated as having applied for child maintenance, encourage parents to make their own child maintenance arrangements, and give them more choice as to how they do so.
  • Streamline and simplify how child maintenance is calculated enabling money to get to more children more quickly.
  • Introduce tougher enforcement powers to collect arrears of child maintenance from parents who fail to pay.
  • Introduce powers to reduce child maintenance debt more effectively
  • Introduce a new scheme to make lump sum payments to people suffering from mesothelioma who were previously ineligible for such payments, within 6 weeks of them making a claim.



The NACSA website sets out more precise details on what the is proposed by the new scheme and what they think about it. Another note of scepticism is sounded by the Chair of Resolution's Child Support Committee, Kim Fellowes as reported on Family Lore . Resolution's press release on the subject is now on their new website .

Clearly the CSA will not be sorely missed by Journalist Clover Stroud, from whose article in the Sunday Times (He Won't Pay - so I Have To) will be happy to dance on its coffin when it finally goes.

Unfortunately this will not be until 2009 for existing cases and 2010/2011 for new cases.

Domestic Violence Round Up

From 1 June 2007, victims of stalking and domestic violence have been able to benefit from new legislation in the Electoral Administration Act 2006 which contains provision designed to protect people at risk if their details appear on the electoral register. Those at risk can apply to their local authority in England and Wales to be registered anonymously while still being able to vote.

On 1 July 2007, the remaining provisions of the Domestic Violence, Crime and Victims Act 2004 were implemented. Section 1 makes the breach of a family non-molestation order a criminal offence punishable by up to five years' imprisonment. Section 4 extends availability of non-molestation and occupation orders to those persons that have never cohabited or married.

In addition, the Forced Marriage Act 2007 received royal assent on 27 July 2007. The aim of the Act is to provide protection to those at risk of forced marriage and to provide recourse for those who have already been forced into marriage. Under the Act, a person who is being forced into marriage or has been forced into marriage may apply to the court for a Protection Order. The court can order the behaviour or conduct of those responsible for forcing that person into marriage to change or stop or to impose requirements upon them. If they fail to comply with the court order they will be dealt with by the court and indeed may be sent to prison.

Here the Home Office publishes its annual reports on the National Domestic Violence Delivery Plans .

Womens Aid has published a Kidspeak report setting out how children view & experience domestic violence.

Last but not least there is a helpful article: Domestic Violence & Ex Parte Applications: Getting the Affidavits Right by Byron James.

Sleepless nights for Southall? Expert in hot water again

The unrepentant Professor Southall has been found guilty of misconduct by the GMC in accusing a mother of drugging and murdering her 10 year old son. The GMC also found that Professor Southall had interfered with the integrity of medical records by removing documents which he put into his own secret collection of "child abuse" cases. The GMC will apparently be considering the case further to decide whether this constitues serious professional misconduct & what penalty to apply. For further details see the Times & the Guardian & & This is London . Here are links to the full transcripts of the GMC hearing . For a more controversial take on the life & times of Professor Southall see the Dr David Southall Exposed blog with some contrary thoughts on Jonathan Gornall's blog . For a very personal perspective see Lawrence Alexander's blog .

To the Victor the Spoils? Apparently not.

The Law Society has won its case against the Legal Services Commission in relation to the legality of the new public funding contracts. See the judgment of the Court of Appeal (Lord Chief Justice, Lord Justice Wall & Lord Justice Lawrence Collins). The court held that:-

"The power of amendment is so wide in this case that it amounts to a power to rewrite the contract."


The court went on to hold that the unilateral power to amend in such a wholesale way on short notice was an unjustified obstacle to the opening up of public procurement to competition & that it infringed the principal of equal treatment. It did not make it any better that if firms did not like the proposed amendments they could simply terminate the contracts.

Unfortunately, as is obvious from this Times report the LSC are obstinately clinging to their reform plans and say that it will merely mean they have to terminate & re-tender for contracts more frequently.

Saturday, 1 December 2007

Removing the children before the children get removed

Lots of media attention in the last couple of weeks about case of Fran Lyons. Her website Asking for a Chance gives the background. Press coverage includes a Daily Mail article , Woman's Hour, & ITV news .

Fran has had mental health problems earlier in her life and now she is expecting a baby. The local authority are apparently saying that they will remove the baby at birth, having been advised that Fran might harm the baby as a result of Munchausen by Proxy Syndrome. Fran was understandably terrified about what will happen. She moved into a different local authority area but has now decided to take herself off to Europe.

I don't know all the background details of the case but if half of what is written about the case is true, it is difficult to see how the local authority would have persuaded a court to grant them an emergency protection order or interim care order: see the article on the Interim Removal of Children from their Parents on the main Family Law Week site. In one of the cases referred to Mr Justice McFarlane specifically says that cases involving fabricated or induced illness with no medical evidence of immediate risk of direct harm to the child will rarely warrant an emergency protection order. In addition there is case law which suggests that Munchausens Syndrome By Proxy (MBSP) or factititious illness (a syndrome in which parents are thought to fabricate or induce illness in children) does not even exist. Mr Justice Ryder said this: "The terms ‘Munchausen’s Syndrome by Proxy’ and ‘Factitious (and Induced) Illness (by Proxy)’ are child protection labels that are merely descriptions of a range of behaviours, not a paediatric, psychiatric or psychological disease that is identifiable. The terms do not relate to an organised or universally recognised body of knowledge or experience that has identified a medical disease (ie an illness or condition) and there are no internationally accepted medical criteria for the use of either label. In reality, the use of the label is intended to connote that in the individual case there are materials susceptible of analysis by paediatricians and of findings of fact by a court concerning fabrication, exaggeration, minimisation or omission in the reporting of symptoms and evidence of harm by act, omission or suggestion (induction). Where such facts exist the context and assessments can provide an insight into the degree of risk that a child may face and the court is likely to be assisted as to that aspect by psychiatric and/or psychological expert evidence." Fran says that she has been diagnosed as likely to suffer from this syndrome by a Paediatrician who has not in fact ever met her. Further she says that the Psychiatrist(s) that know her do not agree. It is difficult to see how that diagnosis could possibly be made on a paper assessment before the baby has even been born and suffered any harm at all. Writing about diagnosing MBSP, Professor Tim David, a leading Paediatrician said: "This is one area where confusion can occur. The diagnosis is made in the same way as in any other case of physical abuse, and not by identifying certain parental characteristics, such as the mother being a nurse." And even if it were true that Fran did have the condition of MBSP this does not mean she could not be given support and Psychiatric treatment.

I appreciate that the public debate has been rather one-sided in that the local authority have not been able to contribute much by way of detail, but it does seem that Fran would have had a good case to put to the court. I can't help thinking that I might well have been tempted, if in her shoes, to duck out of all the stress and strain of combining first time motherhood with care proceedings by skipping off to live abroad. I do wish though that the public debate that there has been had included a little more about the legal principles and difficulty likely to be faced by local authorities when trying to justify removal & a little less on baby adoption targets which in fact have been withdrawn.

Thursday, 29 November 2007

Return of the Ringtone

Let's hope none of the Judges in the UK decide to take a leaf out of New York Judge Robert Restaino who, when hearing a domestic violence case, according to the Daily Mail decided to send the whole courtroom to jail when no-one would own up to being responsible for the ringing mobile telephone that interrupted the proceedings. The Judge is now spending a bit more time with his own family, whether he likes it or not.

Wednesday, 28 November 2007

What should you look out for in a family mediator?

Picking up on other posts about the need to check out expert qualifications Are the Experts Expert?) (and see Chris Mc Watter’s article on Using the Web to Find an Expert), I also agree with the post on mediation on Divorce Solicitor’s blog that it can be difficult to know what to look for in this fairly unregulated area. I also wonder if one of the problems with in-court conciliation (see earlier post) is that those doing mediation work are not mediation trained. There are, however, things to look out for in evaluating the expertise of a mediator.

Anyone can practice as a private family law mediator and can have gone on any course by any provider (or indeed none at all). Mediators may also be qualified as lawyers, social workers or counsellors but this is not compulsory. The lack of regulation of mediators is not satisfactory as the quality of mediators in the private field varies from excellent to poor and is not regulated by a core professional body. However, in order to take on public funded cases they have to be approved to the LSC standard which is usually done by the following route. Mediators undertake a foundation mediation course by a provider accredited by the UK College of Family Mediators. There are five providers who run family mediation courses to the standards of the UK College of Family Mediators. These are National Family Mediation (NFM), Resolution, Alternative Dispute Resolution (ADR), Hertfordshire Family Mediation and Key Mediation.

The foundation course usually contains five modules taken over the course of a year. The trainee must then complete a period of supervision taking cases from induction through to agreement and writing a portfolio relating core criteria to evidence from cases. On satisfactory completion of a portfolio it will be signed off by the supervisor and sent to the UK College of Family Mediators to be assessed. If passed, the mediator is deemed suitably qualified to undertake public funded mediations by the LSC. College membership, assessment and continuing professional development is specified as a requirement (except for members of the equivalent Law Society family mediation group) by the Legal Services Commission for family mediators who wish to work with publicly funded clients in England and Wales.

Therefore mediators accredited by the UK College of Family Mediators or who have completed a mediation course with one of the UK College’s approved providers and/or those who take on LSC mediations have been trained well. This does not mean that they are all excellent mediators nor that mediators without college approval do not do a good job but it is at least an assurance of a standard of basic and ongoing training and accreditation.

Monday, 26 November 2007

Educating parents about educating children?

According to the DFCS the results of a national consultation to feed into the new Children's Plan, for most children, things are good: they are happy, healthy, cared for by their families & increasingly well-educated (virtually all of them apparently!) I am not sure that the Children's Rights Alliance for England would agree from a quick read of their report on the State of Children's Rights . Or maybe the happiness comes from the fact that one in seven children under 13 have tried cannabis according to this Guardian piece ? According to the DFCS research, the only thing that causes children a problem is that their parents are so anxious they are preventing their development by not letting them walk to school or take other similar risks. Fathers also hold their sons back at school if they don't go out to work according to some research at Bristol University according to this Daily Telegraph report . But don't try to help children with their school work because according to the Guardian, Cambridge University researchers warn that this will lead to the scholarisation of childhood, which parents are not cut out for. And don't teach them to read before they are 7, warns Lilian Katz (Professor of Education in Illinois - well somebody has to be) in the Guardian because it will dent their confidence in future if they are not very good at it. Apparently vulnerable children are also better off after 3 years in boarding school according to this Independent report . Confused - you will be - but fortunately along has come the National Academy for Parenting Practitioners to tell us what works and why. Am I getting old or was life a lot simpler when I was a girl (being badly brought up by my parents)?

Sunday, 25 November 2007

In-court conciliation: not quite a roaring success?

New research by Liz Trinder & Joanne Kellett from UEA shows that 40% of agreements reached at court through Cafcass & similar intervention needed further litigation. For further comment see this piece on Community Care . Conciliation does seem at least to ensure that contact happens but this report suggests there is still a long way to go. I trust the researchers will now do some work in which they identify the reasons for their conclusions. It clearly could not possibly imply any superiority in court based contact resolution, could it?

Friday, 23 November 2007

The Times reports on rise in child abduction

The Times has published a quite detailed piece on child abduction timed, I guess, to coincide with the annual balloon launch organised by Denise Carter of Reunite. You can read the article here.

Reunite say that this year they have recorded a 22% increase on child abductions in the first half of this year compared with 2006.

Thursday, 15 November 2007

Judicial Appointments

Stephen Wildblood QC has been appointed to the Circuit Bench and will be sitting in Exeter.

Joanne Harris, formerly of Garden Court Chambers, has also been appointed as a Circuit Judge and is sitting in Watford. She is the first of my contemporaries to be appointed to the Circuit Bench and whilst it will be a very great pleasure to address her as Your Honour it will also be more than a little weird and makes me feel ever so slightly old & grown up.

A laugh a minute? Not

John Bolch's blog Family Lore draws attention to the unfortunate position of a certain High Court Judge in a family case who has been removed from hearing a case for some supposedly jocular remarks about one of the parties (not just bad jokes, but thoroughly bad jokes). The case is commented on in the International Herald Tribune and rather more salaciously in the Daily Mail . Thankfully, their Lordships have not banned all jokes from the court room - just the thoroughly bad ones which might give an impression of racism, however unintentional. The full judgment delivered today is available as a pdf file on the Judiciary's website (in the what's new section) together with a statement from the Judge.

Children Act 2004


The Children Act 2004
is now fully in force & introduced a number of initiatives including the Children's Commissioner, the ContactPoint Information Database, the Safeguarding Children's Boards & the Children & Young People's Plan. Nick Armstrong & Eleanor Wright have written a helpful commentary on the only reported case on the Act so far - Re LH & MH . For an overview of the main provisions of the Act see the guide on 4 Brick Court's website .

Revoking Placement Orders & Opposing Adoption: the leave stage

The recently reported case of Warwickshire County Council v M [2007] EWCA Civ 1084 is not going to make things easier for would be applicants who wish to challenge adoption applications or apply for permission to apply for a revocation of a placement order.

It is difficult to see from this case (albeit the decision was obviously based on the facts of the particular case) how an application for permission to revoke is ever going to meet the high standard of ‘arguable case’ which Wilson LJ has prescribed in Warwickshire.

An updated article considering this case and the related case of
Re P
(on leave to oppose adoption applications) can be found on 4 Brick Court's website .
http://www.4bc.co.uk/view_article.html?id=77

Tuesday, 13 November 2007

RE-relocation

A report about a relocation case described as 'not just exceptional, but very exceptional' is found in the Times . The mother of two boys of 11 & 16 was allowed to take them to live with her in France in 2005. But the boys could not settle there and after a holiday back in the UK with their father refused to return. Thorpe LJ (yes, really) has allowed them their wish to stay in Britain with their father. The case is not yet reported. For an article on relocation cases featuring the life & times of Thorpe Lj see my article I'm Leaving on a Jet Plane, Don't Know When I'll Be Back Again: Can I Take the Children with me? on the main Family Law Week website.

Does the father have the right to know?

From the Guardian on 8.11.07:

A mother's decision to put a child conceived during a one-night stand
up for adoption has turned into a legal dilemma over parental rights
and responsibilities.

The woman, 20, has told the court of appeal she does not want anyone
to know the identity of the father, a work colleague. However, her
local authority believes her family and the father should be
approached to see if they are willing and able to look after the baby girl, who is now 17 weeks old.

A county court has already ordered that the woman's parents and the father should know. Yesterday three appeal court judges were asked to reverse that order. The local authority is preparing to take the child into care after receiving a report that she was "abandoned" by the mother at the hospital where she was born.

Eleanor Hamilton QC, representing the mother, said she had not told
her parents or the father about her pregnancy because she did not want them to know. "This girl was unable to bring herself to tell the
parents and drove herself to hospital in the dead of night to have the child.

"She is a perfectly ordinary girl in a job she loves, who is living
her own life. That should be taken into account by the court." Ms Hamilton said the mother lived away from her parents.

Although the parents now know about the child, she has consistently refused to name the father. Ms Hamilton said: "It was, on the account given by the mother, a one-night stand with a fellow employee while
both were on the rebound having broken up with long-term partners.

"He is now back with his fiancee, continuing with that relationship,
and has no idea she has given birth to a child."

Judith Rowe QC, representing the baby's legal guardian, said that if
the woman's family could not help or were unsuitable, then the father and his family would be approached. Ms Rowe said the local authority believed the child should be brought up by the family if possible.

Lord Justice Thorpe, who led the panel of three judges, said: "That sounds doctrinaire. It is difficult to imagine a more dysfunctional family than this."

A court order prevents identification of the mother and child, the
local authority and where the case occurred. Judgment was reserved.

On a similar point in Re L (2007) was a case where the local authority needed guidance as to whether they should attempt to contact the natural father before placing the child for adoption. The mother claimed that she did not have any information about his identity of whereabouts. Initially Munby J had directed that the mother should be asked once more for information at a hearing, but as that did not result in anything concrete he concluded that nothing further should be done to pursue the father.

Monday, 12 November 2007

Stand by your man .. and his love child

From the Times comes a curious tale of a woman who is supporting her husband's bid to bring up the child of his affair with another woman, alongside the children of their relationship. The pair have been granted the chance of a rehearing by the Court of Appeal, following the County Court's earlier decision to favour adoption because of threats from the natural mother.

Queen's Speech: Children & Young Person's Bill

The Government has announced its plans to introduce new legislation dealing with services for vulnerable children & children in care following on from the Care Matters consultation & Green & White Papers. The main elements of the Children & Young Persons Bill will consist of provisions:

  • Giving pilot local authorities the power to test a different model of organising social care by commissioning services from ‘Social Work Practices’ and enabling regulation of these practices;
  • Increasing the focus on the transparency and quality of care planning and ensuring that the child’s voice is heard when important decisions that affect their future are taken;
  • Increasing schools’ capacity to address the needs of children in care, including placing the role of the designated teacher on a statutory footing and ensuring that children in care do not move schools in Year 10 and 11 except in exceptional circumstances;
  • Ensuring that young people are not forced out of care before they are ready, by giving them a greater say over moves to independent living and ensuring they retain support and guidance as long as they need it; and
  • Improving the quality and stability of placements for children in care, securing higher placement standards, ensuring that children in care and custody are visited regularly.

All sounds very laudible. No further information available as yet as to that old devil the detail.

Extra experts

Two cases earlier this year illustrate the differing and sometimes unpredictable attitude of the courts to the instruction of experts. In M-M the Court of Appeal refused to allow the instruction of an additional expert to carry out a test for ostogenesis imperfecta in circumstances where one of the experts currently instructed had suggested it, not on clinical grounds but on forensic grounds ie to assist the court. The court considered that it was not for the experts to decide what was forensically required and that the test which would costs £5,000 was not justified when it would only establish OI in 1% of 300 cases where there were no other signs & the test was only 90% accurate. In the other case, Re B , the Court of Appeal allowed the instruction of a fourth expert in care proceedings, notwithstanding the fact that the opinions of the first three were against the parents, they having been experts instructed when a previous child was removed from their care. At the door of the Court of Appeal the mother gave instructions that she would separate from father and wished to be assessed as a sole carer. The mother was given leave to instruct the fourth expert on the basis that parents facing the removal of a child must have confidence in the fairness of the family justice system whilst at the same time, if the fourth expert agreed with the other three, this might short circuit the final hearing.

Are the Experts expert?

The Times reports on City University research which shows that 3 out of 4 lawyers fail to check the qualifications of their experts. The research authors call for a change in the rules to ensure that training and qualifications are taken into account before experts are selected. Of course, this is supposed already to be considered under the Protocol. However, I cannot remember the last time a Judge actually asked to see the expert's cv if all the parties were agreed that a particular individual was to be instructed. It may seem that there is some protection afforded in choosing an expert who is accredited, for example by the Law Society. But there is much more to it than that. It is important to consider questions such as how far away from clinical practice the expert is and what training they may have had in giving evidence in general and in family cases, in particular. I am also aware that a number of experts are assumed to have an expertise in a certain area simply because they regularly appear in the family courts eg a certain Psychiatrist who is assumed to be a Child & Adolescent Psychiatrist when in fact she is a Consultant Psychiatrist in Psychotherapy or a certain Paediatrician who describes himself as a Forensic Paediatrician when there is no such qualification which is formally recognised, a certain Psychologist who is regularly asked to assess learning disabled parents when her clinical expertise is in the field of the elderly etc etc. And what pray is a Paediatric Neuroradiologist or a Consultant in Paediatric Bone Disease? Two resources which may help are the recent article by Chris McWatters on expert directory websites on Family Law Week and this Guidance on Type of Expert & Qualification on the 4 Brick Court website (where you will also find a an updated draft letter of instruction to experts . Your top tips for how to avoid pitfalls in instructing experts would be welcomed.

Friday, 9 November 2007

Using the Web to Find an expert

Family Law Week has just published a very useful review of the latest expert witness websites - you can find it here - http://www.familylawweek.co.uk/library.asp?i=3234