About the Family Law Week blog
The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.
Thursday, 28 February 2008
Tuesday, 26 February 2008
The judgment is of interest because it sets out some conclusions arising from difficulties and errors in the DNA testing. During the course of the proceedings, involving several adults and children, it had emerged that there was doubt over the parentage of the children involved. The judge therefore ordered that DNA testing should be undertaken. In the event, it was found that the firm chosen to undertake the testing had procedural defects that meant that the result could not be relied on. A result of a second test, carried out by another firm, was challenged by the alleged parents and so the judge allowed a third test from a third different firm. Their results supported that challenge and the second firm, on review, changed their opinion to agree with the third firm.
In the light of these difficulties, the judge issued this judgment in open court to highlight some of the issues involved in DNA testing and in paragraph 32 sets out a series of points concerning the appointment of DNA testers and what a letter of instruction should contain. He also describes the mechanics of DNA testing, how the difference in opinons between the DNA testers arose and makes some points about their expert role as part of the wider proceedings.
I was fascinated by the case which I think is the first to consider these issues having recently had a case involving two different firms concluding that two different men were the father of the same child. I do not know whether DNA Diagnostics was involved in my case but practitioners would be well advised to read the judgment in full before deciding to instruct or consent to the instruction of any particular DNA testing service. DNA Diagnostics is not on the MoJ accredited list for DNA testing and the court held it should never have been instructed. The Judge was also concerned that the firm's literature gave the misleading impression that it was a large national outfit when it fact it operated behind a number of PO boxes and that it was accredited. The reported case was further complicated by the second two firms instructed appearing to disagree with each other radically when in fact they did not. A salutary lesson in the need to dig a little deeper when instructing experts (see also this earlier post on City University's research on lawyers' use of experts (3/4 fail to check qualifications) and then to be careful exactly what you ask them!
For some scientific background on DNA see DNA From the Beginning .
Community Care is a website well worth checking out by public law specialists. Although aimed at social work professionals it has good coverage of legal topics. In Today's Papers has a round up of all news stories related to social care issues. There are a number of different newsfeeds grouped under headings like child abuse, children's services, fostering & adoption as well as topics of more general community care interest such as housing, with a good explanation of how to subscribe to them (simple if you have Internet Explorer 7 - just click on the orange button at the top right hand of the page and subscribe - the feed is then kept in a directory next to your favourites and the feeds are updated whenever you are online - this means you don't have to go the website every time you want to know what is new and you can glance over the headlines & short summaries and read the full content of anything that interests you - if you don't have IE 7 you need a newsreader such as Google Reader ). There are a number of round up articles on the main website such as this Special Report on the Children Act 2004 & this one on Essential Information on Child Protection one of a series of resource summaries. There is a regular legal update provided by Doughty Street, Hempsons & White & Sherwin, though those published on the website lag slightly behind real time. These are just some of the tip of the iceberg of this website - other features include a series of blogs, an A-Z of benefits and you can sign up for email newsletters. All round a top site!
Monday, 25 February 2008
Saturday, 23 February 2008
Have a look at www.acp.ie for details and read about how you will be able to participate in the European and global development of collaborative practice.
In England and Wales collaborative law continues to grow with Collaborative PODS appearing all over the country.
In my area,Plymouth, Devon the seven collaborative lawyers (soon to be nine) intend to launch their POD on the 23 April 2008. They are busy finalising and printing their brochure as well as developing their website and list of invitees.
So, if anyone with experience has any advice about marketing a POD using brochures and a website or any other helpful general advice for a successful launch this would be very welcome. Please tell us about your experiences.
Partner, Act Family Law, Plymouth
Friday, 22 February 2008
The Ministry of Justice has published the responses to the consultation paper on the FPR.
In the new proposals, archaic terms will be replaced with easier to understand language, a decree nisi will be known as a conditional order and a divorce petition will become an application for a divorce order. In a customer survey court-users identified simpler language in court documents as a key requirement.
A single unified code for family proceedings will mean that those using the family courts need only refer to one source for guidance. Currently users may need to refer to at least three different sets of rules.
The next step in developing the Family Procedure Rules will be when the Family Procedure Rule Committee consults on the draft rules themselves. This is currently planned for the end of the year.
Wednesday, 20 February 2008
Tuesday, 19 February 2008
Along with the Public Law Outline (see Family Law Week news item ) a new Practice Direction has been published on the use of experts in cases relating to children which supercedes the guidance contained in the Protocol at Appendix C. The new guidance is to take effect from 1st April 2008 but may be followed immediately if the court wishes to do so. Much of the guidance is similar to that in Appendix C but I will highlight what is new.
- The guidance contains a welcome reference to following the same principles when instructing of experts before the issue of proceedings and broadly takes account of recent judicial views as to what experts should include in their reports (see the judgment of Ryder J in the Oldham case ): experts should be asked to describe any ethnic, cultural or linguistic factors they have taken into account, any research or literature considered, to describe any process of risk assessment or differential diagnosis noting any unusual, contradictory or inconsistent features of the case & highlighting any hypotheses relied on.
- There is specific guidance on how the expert should deal with any question on which there is a range of scientific opinion with reference to factors which or support the opinion expressed within that range.
- Parties who wish to instruct experts are to submit draft directions dealing with the instruction by 11am on the business day before the relevant hearing.
- The guidance provides that it shall be standard for letters of instruction to be prepared, agreed, filed & served by the lead solicitor within 5 business days of the relevant hearing. If parties cannot agree the contents of the letter the guidance proposes a mechanism for the Judge to deal with the letter by email if at all possible, thus avoiding the need for a hearing.
- If parties wish to ask further questions of the expert this is supposed to be done by not later than 10 business days after receipt of the report.
- There is a detailed section on the arrangement of experts’ meetings (nominated professional to take the lead, agenda by way of a list of questions (which should not be a mere repetition of questions asked in the original letter of instruction) to be agreed in advance, nominated professional to chair, a minute to be taken of the answers to the questions, a statement of agreement / disagreement to be prepared).
- At frequent points the guidance reminds practitioners of the need to be considerate of the experts other professional commitments & encourages greater use of video links & telephone conferences to minimise disruption to them.
- A key change is that where a party refuses to be bound by an agreement that has been reached at an experts’ discussion or meeting, that party must inform the court and the other parties in writing within 10 business days after the discussion or meeting, or where an IRH is to be held, not less than 5 business days before the IRH and must specify the reasons for refusing to accept the agreement.
- Finally, in an annex to the guidance are some suggested questions, drafted by the Family Justice Council for mental health professionals, paediatricians, adult psychiatrists & applied psychologists.
The draft letter of instruction on 4 Brick Court’s website has been amended to take account of the Practice Direction and includes possible questions to experts from other sources as well as the FJC questions.
Monday, 18 February 2008
Sunday, 17 February 2008
Parents are to be given the right to information about people who regularly look after their children in a scheme which the Government are piloting according to the the Times .
The NSPCC fears that trafficked children are not being properly protected and end up being sent back to gangs who continue to exploit them according to the Guardian .
Top divorce lawyers Suzanne Kingston from Dawsons & Alex Carruthers of Hughes Fowler Carruthers advise that pre-nuptial agreements are becoming essential in the wake of the Crossley case & the McCartney divorce according to this Times story .
The Germans seem to be going in the opposite direction to recent case law here keeping the biological father & extended family at bay in adoption cases (see this earlier post on Adoption Resources . According to this Guardian story a German woman has been forced to name the six men who won an online auction to have sex with her on the basis that the child has a right to know the identity of its parents.
Geoffrey Robertson has written an interesting article the UK's contribution to the Australian stolen generation policy suggesting that an apology from the UK government is in order.
Friday, 15 February 2008
Wednesday, 13 February 2008
But the surprising thing for us was the story of a man who breached an order not to contact his estranged wife. I assume he was doing his bit but then he signed up for Facebook and an email was automatically sent to his friends - including his ex-wife. Apparently he got 10 days in jail for it.
The same article also quotes Elizabeth Allen, head of family law at Stephens and Scown, on the inevitability of the first social networking divorce (if that's not a contradiction), who said:
"Social networking has much more scope for trouble because of the public element. It's got the potential to be more explosive. It's just like airing your dirty laundry. We've had divorces that have been due to Friends Reunited in the past and that will be replaced by Facebook with the next generation. Now most people who would never have written a love letter to someone are writing it all down and sending it because they somehow think it's different."
You can read the full item on the Independent website
Monday, 11 February 2008
Friday, 8 February 2008
The Archbishop of Canterbury called for public recognition of Islamic law in the UK in a speech last night in the Royal Courts of Justice. I would venture a comment if I could understand a word of what he said but I'm afraid I am defeated. Here's a flavour: "I have been arguing that a defence of an unqualified secular legal monopoly in terms of the need for a universalist doctrine of human right or dignity is to misunderstand the circumstances in which that doctrine emerged, and that the essential liberating (and religiously informed) vision it represents is not imperilled by a loosening of the monopolistic framework." He also gave an interview on Radio 4 which is a little easier to follow but not much. I don't think I agree with him but it is rather difficult to tell! I was amused by this reaction from a US commentator: "What do you expect from someone that believes in a giant invisible being that lives in the sky, knows everything, created everything, and talks to humans in their language. Give me a break."
Thursday, 7 February 2008
The text of this post has been added to the earlier post for completeness.
For an interesting comment on the case see this piece by Liz Davies, social worker in the Guardian.
Wednesday, 6 February 2008
The Adoption Rules website maintained by the Ministry of Justice follows the CJR model and contains all the rules & practice directions as well as court forms, is fully searchable and kept up-to-date.
For an overview of the Adoption & Children Act 2002 and the main changes it introduced see this article by the Family Team at 4 Brick Court .
The main BAAF (British Association for Adoption & Fostering is packed full of useful materials such as news, research, links and guidance on legislation and has an adoption subsite .
There are various useful sites under the Every Child Matters main page: adoption training materials where you can download workbooks, trainer packs or register for e-learning & the main adoption platform page has links to legislation & practice guidance.
The President's Guidance on Adoption is available online as a pdf file.
The Court Service also publishes introductory booklets on adoption & intercountry adoption and you can download the adoption forms by searching for worktype adoption in the forms section.
The Adoption Information Line is allegedly the most popular adoption internet site in the UK. It certainly deserves to be and has a good database of information and articles about the law, practice and processes of adoption though it is not primarily aimed at lawyers.
The Post Adoption Centre is a long-standing charity providing a range of services related to adoption and another adoption support agency Family Futures provides services to adopted children and their families but also provides assessments in care proceedings, particularly on attachment.
The DCFS Intercountry Adoption site is a comprehensive resource for materials and legislation related to adoptions of foreign children (incoming to the UK).
Other sites include the Independent Review Mechanism is a panel to which would-be adopters can apply for a review of a decision to refuse to approve them as adopters & the Adoption Register is a national resource for linking children to prospective adopters.
Recent cases on adoption on the Family Law Week website include :
Re A : appeal granted to foster carer refused leave to apply to adopt;
Re C : a local authority did not have to make enquiries about extended family members where mother wanted the child, who was the result of a one-night stand, to be adopted.
Re L : a local authority did not have to pursue the natural father or maternal family in circumstances where mother would not give any information about his identity or whereabouts and did not want her family to know about the child.
Three cases on adoption versus special guardianship from 2007 are AJ ((child placed with paternal uncle & aunt who feared that the parents would not co-operate and that future litigation would be a burden – adoption preferred & upheld on appeal), S (applicant was foster carer with very good relationship with mother (who was likely to have ongoing relationship with the child) but who would have preferred adoption – SGO upheld by CA) and M-J (child placed with maternal half-sister – mother with history of drug abuse and recent relapse, not truly accepting need for permanence away from her – adoption preferred to SGO & s 91(14) & upheld on appeal).
In relation to leave applications, the Court of Appeal has granted an appeal to a foster carer who was refused leave to apply for an adoption order, in the case of Re A sub nom TL v Coventry City Council and taken the opportunity to comment on the principles which should be applied in a leave application: welfare is relevant but not paramount as is whether or not the applicant has a real prospect of success. The same principles should be applied in applications for leave to adopt as in applications for leave to apply to revoke a placement order and the decision of the Court of Appeal in Warwickshire CC v M was applied.
Tuesday, 5 February 2008
Friday, 1 February 2008
Re P (30.1.08) which will give it the opportunity to look at the interelationship of representation by the OS & the ECHR. The full hearing of the permission application is on 4th March 2008.
The Court of Appeal has also granted permission to appeal to the House of Lords in A Council v B & Others  EWHC 2395 (Fam) (and see the schedule to the judgment on the law here . This case will provide the House of Lords with an opportunity to reconsider their decision in Re H & R both as to whether there should be some variation in the court's approach to the satisfaction of the threshold test, and as to the court being able to take account at the welfare stage of a possibility of harm which has not been proved to the requisite standard at the fact finding stage.
The Law Society is about to launch its second judicial review against the Legal Services Commission in an attempt to force it to comply with the previous declaration of the Court of Appeal.