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.

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