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, 25 December 2009

Wednesday, 23 December 2009

Christmas comes but once a year

but I think we should schedule more frequent christmas breaks as it is the only time of year when judging by the closed courts, closed solicitors' offices and absence of social workers children are obviously not being abused!

Have a good break!

Saturday, 19 December 2009

Friday, 18 December 2009

& then the Judge said ... mareva injunction



A Milwaukee judicial take on funny courtroom stories.

Wednesday, 16 December 2009

Do I make myself clear?



Town vs country - one nation divided by two languages?

Sunday, 13 December 2009

Wild! He was Livid!!!??



Do I have to tell you everything?

Monday, 7 December 2009

A Penitent Man



Eric Idle as the mass murderer.

Sunday, 6 December 2009

Guess the verdict


Court charades from Monty Python & M'Lud in the dock.

Friday, 4 December 2009

Sir James Beauchamp



Sir James Beauchamp is interviewed by Clive Anderson. A judge not to irritate.

Wednesday, 2 December 2009

Peter Cook on trial



A brilliant cross-examination

Tuesday, 1 December 2009

Marriage Guidance



So this is what happens at Relate!

Saturday, 28 November 2009

Yes PM: I don't know why but this came to mind re Baby P

Jim: Five standard excuses?
Sir Humphrey: Yes. First there's the excuse we used for instance in the Anthony Blunt case.
Jim: Which was?
Sir Humphrey: That there is a perfectly satisfactory explanation for everything, but security forbids its disclosure. Second there is the excuse we used for comprehensive schools, that it only gone wrong because of heavy cuts in staff and budget which have stretched supervisory resources beyond the limits.
Jim: But that's not true is it?
Sir Humphrey: No, but it's a good excuse. Then there's the excuse we used for Concorde, it was a worthwhile experiment, now abandoned, but not before it had provided much valuable data and considerable employment.
Jim: But that is true isn't it? Oh no, of course it isn't.
Sir Humphrey: The fourth, there's the excuse we used for the Munich agreement. It occurred before certain important facts were known, and couldn't happen again
Jim: What important facts?
Sir Humphrey: Well, that Hitler wanted to conquer Europe.
Jim: I thought everybody knew that.
Sir Humphrey: Not the Foreign Office.
Jim: Five?
Sir Humphrey: Five, there's the Charge of the Light Brigade excuse. It was an unfortunate lapse by an individual which has now been dealt with under internal disciplinary procedures

Friday, 27 November 2009

Welsh Language Interpreters

Under the Welsh Language Act 1993 and Her Majesty’s Courts Service Welsh Language Scheme there is aright to use the Welsh language in legal proceedings in Wales. Welsh can be used at court hearings in Wales. As soon as it is known that the Welsh language is to be used at a hearing arrangements are made for Welsh language interpreters to be in court. Translation is by simultaneous translation. Her Majesty’s Courts Service has a list of approved interpreters who have attended awareness seminars that are chaired by the Liaison Judge for the Welsh Language. Her Majesty’s Courts Service is responsible for paying the interpreters fees.

Thursday, 26 November 2009

Interpreters for the D/deaf and hearing-impaired

The term “D/deaf” is used to refer to the whole range of deaf people. “Deaf” with upper case “d” denotes those who consider themselves to be linguistically and culturally deaf through use of a shared language (BSL) and culture. The word “deaf” with lower case “d” denotes those who have a hearing loss and do not use sign language.

I quote below from the court service website

Her Majesty's Courts Service will meet the reasonable costs of interpreters for deaf and hearing-impaired litigants for hearings in civil and family proceedings.

Many people have a friend or relative who usually interpret for them. If the deaf person wants such a person to interpret for them, they will need to ask for permission from the Judge. The Judge must be satisfied that the friend or relative can exactly interpret what is being said to the court and what the court is saying to the deaf person.

Unless the relative or friend has a recognised qualification in relaying information between deaf and hearing people, it may be better to use a qualified interpreter. The friend or relative may still be able to attend and provide support, but permission should be sought from the Judge first.

If an interpreter is needed, the court will make arrangements for an interpreter to attend.


I quote from the LSC guidance (pdf file) on payments for interpreters for deaf or hearing impaired clients (outside court situations).

In light of preparations for the public duty to promote disability equality to come into force in January 2007, the Commission will now bear both the ‘reasonable and unreasonable’ adjustment costs so that deaf clients are not denied access to language support where appropriately employed and where reasonable in amount.

As well as the cost of English/British Sign Language interpretation we will pay the reasonable cost of other Language Support Professionals (LSP), such as Speech to Text Reporters, Lipspeakers and DeafBlind Manual Communicators, if the engagement of such professionals is reasonable and necessary to communicate effectively with the particular disabled client. Further guidance may be developed on this.


In criminal cases the CPS advises that according to a court authority, the true record of a sign language

See Re S-A [2006] EWHC 2942 for a case in which communication by British Sign Language featured prominently.

Web Resources

The Community Legal Service has a special website with information & legal advice for those who use sign language.

Signature

National Register for Communication Professionals Working with Deaf & Deafblind People

British Deaf Association

Local authority policies: adoption, contact and care orders

I have been dealing with several cases recently in which local authority policies have created difficulties. In one case there was a local authority policy that where any child under 10 required permanent placement outside the family an adoptive placement should be sought. I have stumbled on this policy in other areas where slightly different ages - 9 being the most common. The policy was stated quite openly - in other words without even a token gesture in the direction of - there is a general rule of thumb but in an appropriate and unusual case we might take a different option. In one case it meant that the only way a foster carer could keep the youngest child of the sibling group of 3 she had successfully cared for for 3 years was to apply for special guardianship. This meant that she was immediately £600 a month worse off - there also being a policy that no remuneration element would be paid to a former foster carer even though it may be paid for up to 2 years. It also resulted in there being two children in her household the subject of care orders and one sibling only for whom she was the special guardian. It seems to me that such a policy is unlawful. Had I been involved earlier, I might have been minded to suggest a judicial review but I suspect my client would not have qualified for public funding and would not have wanted to take the local authority to court for fear of jeopardising her good working relationship with them and their support for her application. Nor did she want the mother to think that her offer to care for the child permanently was motivated by money. It is a particularly inapt policy where sibling groups are concerned and I cannot see that it can be justified as child centred. In another sibling group case, adoption was favoured by the local authority and evidence was given to the effect that it was a breach of the children's human rights and discriminatory not to seek an adoptive placement. This case involved children who on the local authority's own evidence would be extremely difficult to place given their ages and special needs & the likely need for face to face contact. Adopters for them would not only have to be approved for 3 children with special needs it was obvious they would also have to be wealthy and extremely well organised and able to meet the children's needs without any back up from the local authority. In that case the Child & Adolescent Psychiatrist had reported to the effect that the primary need of all 3 children was to be placed together and to be able to have face to face contact. In his oral evidence he referred to research which showed that with sibling groups of a particular age there was a wafer of difference between the placement success rates.

Another policy I ran into was in relation to contact between the birth family & the child subject of a special guardianship order and I have met it before in relation to contact to children in long-term foster care. Supervised contact is only supported twice a year. Again, I cannot see how this one size can possibly fit all sizes. In the same case mentioned above the Independent Reviewing Officer clearly recommended contact once a month to all 3 children but still the local authority were only able to offer to supervise this twice a year and it was fortunate that there was a care order in place for the other 2 children so that the contact which was thought to be in the children's interests could take place.

And finally - an old favourite - we cannot support a care order with children remaining at home. This one is at least usually said not to be an inflexible policy and I can much more easily understand the professional discomfort with it. If concerns are so serious that a care order is justified then it is difficult to see how the local authority can adequately protect the children without removing them. Obvious exceptions might arise - where family members need the ongoing support of the local authority to manage contact arrangements (particularly where the other policy of supporting contact only twice a year is also operating!).

Are there any more policies which drive family practitioners round the bend?

Wednesday, 25 November 2009

It's Just Not Cricket: Better than Average Parenting?

Interpreters in the courtroom

There are estimated to be 3 million people who live in the UK but were born in non-English speaking countries. The use of interpreters is understandably therefore becoming more common particularly in metropolitan areas. I have seen one estimate that the court service as a whole spends about £7m on interpreters annually.

Whereas there is specific reference in Article 6 to the right to a free interpreter when facing a criminal trial, there is no such absolute requirement enshrined in the ECHR in relation to civil cases. Even with regard to a criminal case, this does not necessarily extend to a right to have documents translated. However, it is difficult to see how a family hearing could be described as fair if someone who needed an interpreter did not have one. In a recent case of Kearns v France the ECHR ruled that there was no breach of Article 8 where a consent to adoption form had not been translated from French but this was in circumstances where the Irish mother (who had gone to France to give birth to take advantage of the possiblity of the birth being registered anonymously, which it could not be in Ireland) had had previous and lengthy discussions assisted by a lawyer and an interpreter and therefore it could not be said that she had not understood what she was doing and the consequences.

I quote from the court service website about foreign language interpreters.


Court staff will also arrange for language interpreters needed for civil and family hearings in certain circumstances where cases involve:

Committal cases

Her Majesty's Courts Service has a legal obligation under the Human Rights Act to provide language interpreters. They will ensure that anyone attending a committal case, has the free assistance of an interpreter if he/she cannot understand or speak the language used in court.

Domestic Violence and cases involving Children

Because of the sensitivity of these cases, Her Majesty's Courts Service will provide an interpreter if required. This is irrespective of whether solicitors are involved or public funding is available.

Non-committal cases

Her Majesty's Courts Service will provide an interpreter if that is the only way that a litigant can take part in a hearing. The relevant circumstances are:

Where the person:

  1. Cannot speak or understand the language of the court well enough to take part in the hearing.
  2. Cannot get public funding.
  3. Cannot afford to privately fund an interpreter, and has no family member, or friend, who can attend to interpret for them and who is acceptable to the court.

If the case is publicly funded, Community Legal Service funding may be available. If the case is privately funded parties have to supply their own interpreters.

All Courts

For foreign language interpreters in any court proceedings HMCS arranges and pays for interpreters in accordance with a standard set of terms and conditions (pdf file) which include minimum daily payment rates (£85 on a weekday, £110 at weekends and bank holidays) - applies qualification criteria from national agreement


The LSC encourage the use of interpreters who are on the National Register of Public Service - Interpreters Access to the register requires a subscription. Payment for interpreters is an allowable disbursement for licensed & controlled work according to funding code decision making guidance (at 3C 009 para 4a).

There is a good summary of interpreter qualifications in the national agreement for use of interpreters in criminal justice system . This also has a useful summary of other sources of interpreters if fully qualified interpreters not available including links to the professional bodies representing specific types of interpreters eg lipspeakers & information about sources of translators.

The National Register of Public Service Interpreters has approved a booklet full of good advice about working with interpreters.

Some practice points:

* If possible use a member of NRPSI or National Registers of Communication Professionals Working with Deaf and Deafblind People

* Avoid using an interpreter who has been involved in any police investigation (although sometimes this will be unavoidable because a very rare language is involved)

* It may be possible for 1 interpreter to interpret for more than 1 person in relation to what goes on in court but this will not normally be appropriate during any confidential discussions such as when taking instructions.

* Consider if one interpreter can manage the whole of a case - especially if sign language interpreter is being used

* Most of the codes of conduct for interpreters specifically request them to provide assistance with cultural issues particularly where relevant to interpretation and require interpreters to interrupt if they feel that there has been a misunderstanding of a linguistic or cultural nature.

* Ask your interpreter whether they will be interpreting simultaneously. The NRPSI booklet recommends that you help the interpreter by signalling as you move to a new topic and bear in mind that some languages involve the use of a lot of words to translate one word in English. Make sure that the interpreter is able to keep up and slow down if necessary. Take particular care when you are quoting from documents when your natural tendency is to speak more quickly than normal.

* If using an interpreter for a deaf client who is also a speaker of a foreign language or very rare language it may be necessary to use 2 interpreters - to interpret into 3rd language and then back into English or interpret into foreign language and then sign.

* ‘Facilitated communication’ (a technique used to assist profoundly disabled individuals to communicate) should not be used to provide evidence in support of allegations of abuse or to make diagnostic or treatment decisions (Re D (Evidence: Facilitated Communication) [2001] 1 FLR 148.


For some reason there is much more guidance on use and behaviour of interpreters in criminal cases through the national agreement.

The interpreter's oath is as follows:

I swear by Almighty God that I will well and faithfully interpret and make true explanation of all such matters and things as shall be required of me according to the best of my skill and understanding.


I have always thought that the ability to get through this oath is some kind of an English proficiency test in itself!

Other useful resources

The Association of Police & Court Interpreters publishes a code of practice and has a directory.

Institute of Translation & Interpreting

National Union of Professional Interpreters & Translators (NUPIT) (part of Amicus)

Thursday, 19 November 2009

Jack Straw Announces Further Reform to Family Courts

Jack Straw has announced further reform to the Family Courts System, by way of greater openness. The changes are contained in a draft bill and will permit much wider reporting of proceedings, on the proviso that anonymity will be maintained. It will be interesting to see how that works in practice. The Press Release can be found here on the Ministry of Justice website.

Monday, 9 November 2009

5 Outcomes : 1 Checklist

Increasingly frequently court reports from Local Authority social workers (and less often CAFCASS) are placing significant weight on the '5 outcomes' set out in Every Child Matters. They are:
  • be healthy
  • stay safe
  • enjoy and achieve
  • make a positive contribution
  • achieve economic well-being
Whilst these are noble aims and ones which one would hope arrangements sanctioned by the courts would meet, I have seen one too many reports where these five outcomes have distracted reporters from the task at hand when preparing a s7 or other report: to make recommendations to the court on the basis of the law, rather than government policy.

In fact the welfare checklist is a rather more sophisticated and subtle tool than the 5 outcomes, and is designed to be an adaptive tool to assist in the assessment of this child in this case. One factor which is often inadequately addressed by social workers reporting from a '5 outcomes' mindset is the impact of change. So, for example one may say that residence with Dad would satisfy the 5 outcomes better than residence with Mum, but the welfare checklist specifically reminds us to factor in the impact of a change from Mum to Dad. It's all about the questions one asks: whilst the law tells us that the impact of change is a factor to be considered, and authority tells us that the disruption of change must be offset by some particular benefit, a 5 outcomes approach can lead a social worker to simply compare the two proposed future care arrangements without reference to the status quo or the impact of disrupting that, and to underestimate the significance of change for the child or at least to fail to properly analyse that factor.

It won't be in every case that the two checklists produce different answers. But it is concerning that in the production of a statutory report the officers tasked with that piece of work are prepared so easily to treat policy documents as equivalent to or more important than statute. This can undermine a parent's confidence in the rigour of the report, and can provide a fruitful opportunity for cross examination.

None of this is to suggest that social workers don't know what the welfare checklist is, or indeed that the 5 outcomes should be ignored. But it is important for social workers to appreciate the statutory duty that they are fulfilling when they write a report, and I sense that - for some at least - somehow that understanding of the task has become hazier than it should be.

The welfare checklist is meant to help courts to promote the aims of the Children Act 1989: to ensure the best interests of the child. This all encompassing notion of welfare is something qualitatively different to the 5 outcomes and we should keep going back to it.

Friday, 30 October 2009

Contact & the internet age

An interesting article on Community Care about the impact of technology on supervised contact .

This has been cropping up as an issue in my cases for some time now with printouts from facebook becoming a regular feature of evidence and teenagers in particular arguing that being deprived of a mobile phone is practically a breach of their human rights. Quite apart from the monitoring nightmare that it represents in general terms for whoever is caring for the children, it is made even more difficult by the development of a seemingly incomprehensible style of communicating (u don dat doncha etc). Facebook now has the facility for translating things into Latin which I might find easier to understand than yoofspeak!

Scott Schedules

It was a thought provoking day in Brentford. I seem to be doing a run of fact finding hearings and I greatly enjoyed the CPD seminar on the subject given last night by my colleague in Chambers, George Butler. The text of the seminar will be posted on the 4 Brick Court website soon. One of the matters which caused the Judge disappointment was the state of the so-called Scott schedules. It was a private law case with allegations of domestice violence. The documents which had been prepared by each party simply set out a list of allegations made by the Applicant in one table with a separate table prepared for the Respondent setting out the responses.

A Scott Schedule is so-called after a Mr Scott, a surveyor, who invented the tool for use in litigation. It is most often used in the Technology & Construction court. It has no set structure in civil litigation as it will depend on the case and the nature of the allegations as to what information will assist the court. This is what the Technology & Construction Court guidance says:

5.6.1 It can sometimes be appropriate for elements of the claim, or any Part 20 claim, to be set out by way of a Scott Schedule. For example, claims involving a final account or numerous alleged defects or items of disrepair, may be best formulated in this way, which then allows for a detailed response from the defendant. Sometimes, even where all the damage has been caused by one event, such as a fire, it can be helpful for the individual items of loss and damage to be set out in a Scott Schedule. The secret of an effective Scott Schedule lies in the information that is to be provided. This is defined by the column headings. The judge may give directions for the relevant column headings for any Schedule ordered by the court. It is important that the defendant’s responses to any such Schedule are as detailed as possible. Each party’s entries on a Scott Schedule should be supported by a statement of truth.


In family cases, Scott schedules can be used to good effect particularly in cases involving domestic violence, injuries to children & the allocation of chattels in ancillary relief or indeed, generally to set out threshold findings sought. The precise contents of the schedule will vary according to the case type but essentially the schedule should give each allegation or item a number, summarise each party's case on each finding and cross reference to any relevant evidence in the bundle. There could also be a final column for the court to record its findings on the allegations although it may be easier for the court to incorporate the schedule into a judgment in which the findings are recorded.

The Judge at Brentford indicated that if proper Scott schedules were not prepared when ordered the court would be likely to adjourn the case for the work to be done, with possible cost penalties.

Contact & residence

I was asked by a Judge in Brentford County Court the other day whether it was possible to make a contact order without first making a residence order. Quick as a flash, my opponent, who had the benefit of having been asked this by the same Judge recently was able to answer by pointing to this paragraph in the Red Book (in the footnotes to s 8 of the Children Act 1989):

Contact orders cannot be made without first determining with whom a child lives—Contact orders cannot be made without first determining with whom a child lives, since it is the residential parent who allows the child to stay with the person who has a contact order in their favour (Re B (A Child) [2001] EWCA Civ 1968). However, there does not need to be a residence order in force before there can be a contact order.


Actually on reading the judgment I am not sure that it is clear authority for the proposition that a residence order is not necessary but it is probably as close as it gets. The case arose because a Judge had managed to get himself into a pickle by ordering contact to both parties and as Ward LJ said a shared contact order is a creature unknown to law.

Tuesday, 20 October 2009

Interpreters for deaf & hearing impaired litigants

I quote below from the court service website

Her Majesty's Courts Service will meet the reasonable costs of interpreters for deaf and hearing-impaired litigants for hearings in civil and family proceedings.

Many people have a friend or relative who usually interpret for them. If the deaf person wants such a person to interpret for them, they will need to ask for permission from the Judge. The Judge must be satisfied that the friend or relative can exactly interpret what is being said to the court and what the court is saying to the deaf person.

Unless the relative or friend has a recognised qualification in relaying information between deaf and hearing people, it may be better to use a qualified interpreter. The friend or relative may still be able to attend and provide support, but permission should be sought from the Judge first.

If an interpreter is needed, the court will make arrangements for an interpreter to attend.

Wednesday, 14 October 2009

DCSF research on adoption & fostering outcomes

The DCSF has published a research briefing looking at how successful adoption and long-term foster care is for children in providing security and permanence, and promoting positive outcomes.

The conclusions are summarised below.

This study has shown that the experience of longterm,stable foster care may be very positive. Although it cannot give legal security, long-term foster care may provide emotional security and a sense of permanence to children. The problem remains, however, that although long-term foster care can offer permanence, in practice it may fail to do so. However, it is important to take account of the fact that children typically enter their permanent placements in foster care at a significantly later age than adopted children:

  • Timely decision-making and timely planning for permanence are essential to enable children to enter their permanent placements as early as possible. This may enhance both the likelihood of placement stability and,where this is in children’s best interests, the chance of adoption This has implications both for children’s services and the courts;
  • Carer adoption gives later-placed children a chance of adoption. It is important, where it is appropriate for the child, for carers to be encouraged and supported to obtain a legal order , for example residence, special guardianship or adoption;
  • Placement quality is as important as placement stability.



You can download the research brief.
The Nuffield Foundation has published an interim report on the working of the Family Drug and Alcohol Court, one year on from its inception.

The court, based on a US model, is being piloted at the Wells Street Inner London Family Proceedings Court for three years to the end of December 2010, funded by the DCSF, MoJ and Home Office and three local authortities. The research team was headed by Professor Judith Harwin of Brunel University.

This interim report looked at the experiences of the 37 families who had been through the court (the research team had predicted 60 families). From that sample they found that maternal substance misuse was the trigger to all the care proceedings before the court; that over half the mothers also had suffered mental health problems and domestic abuse and that half of them had criminal convictions (two thirds of the fathers involved had criminal records).

Overall the researchers found that the court operated efficiently and increasingly as a problem solving court, with judges engaging in acivities outside their normal remit, such as solving housing or financial difficulties. This pro-active attitude and the quick assessments of the multi-disciplinary team were valued by the parents who had been involved in the court. However the researchers also found that the numbers coming through the court were lower than expected, as were the numbers using the parent mentor scheme. Further work would need to be done to address these issues.

The summary and the full interim reports are available on the Nuffield Foundation website

Tuesday, 13 October 2009

Collaborative Law

It's not just for solicitors you know. Family Chambers 29 Bedford Row have been putting on their thinking caps and have formed themselves a collaborative law group. A first for the bar?

Monday, 5 October 2009

Elsewhere in the news: sham marriages, mental breakdowns and the social workers checklist

More 4 news reported on a sharp increase in sham marriages being reported this year. The report claims that the increase is due to a Law Lords decision which ruled that regulations in 2006 designed to prevent such marriages were unlawful. Registrars across the country are apparently seeing one such marriage a week so that the figure less than three hundred in 2006 could rise to 500 or more this year

The report followed the sentencing of a mother and son in Birmingham for arranging seven sham marriages and you can view it in full on the More4 website.

There was also plenty of coverage for the High Court proceedings in which it has been claimed that a now penniless millionaire faked a mental breakdown to delay disclosing the whereabouts of some £400m that is thought to have gone missing. The Times has a report on it here.

Meanwhile The Guardian has reported on a new checklist for Harrow Borough Council’s social workers to ensure that they check for as many signs of possible neglect as possible.

But for something completely different, The Telegraph has helped John Cleese out by highlighting his new tour John Cleese… or How to Finance Your Divorce which launched on Friday. The comic claims he has only started performing again to pay for the recent £12m divorce payout.

Sunday, 27 September 2009

What the papers say: News round up

Several notable family law stories have been reported over the past week in the mainstream national media.

The Times published a piece by a retired judge concerning his fight to get contact with his grandchildren following the death of his son. The same paper has also published an editorial piece by campaigning lawyer,Sarah Harman calling for greater transparency of expert opinions

The Telegraph took the more gossipy approach with a report from the Court of Appeal on the Grubb Case where a wealthy landowner sought to appeal an occupation order turfing him out (temporarily) of his family home. (The full judgment is now on the main Family Law Week site)

Finally, The Observer ran a piece on a US "marriage" calculator devised by Betsey Stevenson of the Wharton school at Pennsylvania University. The calculator is designed to estimate the likelihood of the marriage ending in divorce and according to Stevenson results show that

"The lowest divorce rates are among people who marry late with more education; the highest ones are among those who marry young with less education"

Tuesday, 15 September 2009

CAMHS

I am increasingly frustrated by the seeming inability of local authorities to organise any kind of therapeutic help for children in care, but particularly puzzled by the insistence within the local authority of 'exhausting' the CAMHS option before making any other kinds of referral. It has been my universal experience that CAMHS will refuse to offer any kind of service to families as long as proceedings are on foot on the basis that therapy - or at least the therapy they offer - is best embarked on when children are settled in placement. Furthermore CAMHS will never provide reports for court purposes and are not usually willing even to provide oral feedback to independent experts. I am sure there are all sorts of good reasons for the CAMHS approach but my point is that it is a well known one and LAs seem to waste an awful lot of time asking them to take a different approach which they must know will meet with refusal. Is it really not possible to identify some kind of therapeutic resource which can be offered to children at least to help them through the (increasingly long) period of time that they are in the care system before decisions about permanence can be made?

Cafcass: London & National Issues

Further to my earlier post about the problem solving strategy of Cafcass in London (allocate all cases whether anyone can actually do the work or not) I am now told that Cafcass in London has run out of money to pay any self-employed Guardians for the rest of this year.

I have also recently been involved in a case when an employed Guardian gave evidence to the court that she did not see it as part of her role to make visits to the family as that was for social services to do. It is difficult to see what added value there is in an independent professional simply reading the papers. Whatever happened to the eyes and ears of the court?

Having said that I have also been recently impressed by a Guardian expressing an entirely independent view from the local authority having gone to the trouble of assessing the family members for herself and observing contact.

I would be interested to know what your experience of the waiting list problems are and whether the President's trouble shooting ideas are being implemented anywhere? I understnad that on the Northern Circuit there is an office duty scheme in operation. Is it helping?

Monday, 14 September 2009

Appeals from magistrates

In case you missed it ....


The Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2009 SI 2009 No. 871 came into force on 6th April 2009

The full commentary can be found on Family Law Week at:

The effect of this Order is that, from 6th April 2009, appeals against decisions of magistrates’ courts in family proceedings shall lie to a county court instead of to the High Court.

Articles 2 and 3 and 6 to 9 amend the statutory provisions giving rights of appeal from decisions of magistrates’ courts. The amendments provide for the appeals to lie to a county court instead of to the High Court and make consequential changes.

Article 4(2) provides that an application to have a case stated for the opinion of the High Court under section 111 of the Magistrates’ Courts Act 1980 may not be made in relation to family proceedings. Family proceedings are defined as—
(a) proceedings which, by virtue of section 65 of the 1980 Act, are or may be treated as family proceedings for the purposes of that Act; and
(b) proceedings under the Child Support Act 1991.

A new section 111A is inserted into the 1980 Act by article 4(3). The new section provides that in family proceedings a person may appeal to a county court on the ground that a decision is wrong in law or is in excess of jurisdiction. This appeal to a county court replaces the procedure for making an application to have a case stated as it is not appropriate for a county court to hear such an application.

Friday, 11 September 2009

PRFD news

I have been spending a lot of time in the PRFD in the last couple of weeks so thought I would share with you a couple of points.

There are often large queues to get into the building - security seems to be being hypervigilant at the moment - possibly arising out of some sort of incident - so you need to allow extra time to get in particularly for hearings starting at 10 or 2 or when coming back in after lunch. It has been taking me as much as 20 minutes to get in on a bad day but quite frequently 10 minutes. Secondly, security will not currently allow in any glass bottles - including any bottles of perfume or make up etc. I am not sure whether aerosal sprays are also being retained. If you take any of these items in along with all the other usual suspects such as knives, guns & cameras you will have to sign them in and collect them at the end of the day.


For barristers, you may also wish to be aware that the office will no longer seal your SIP for you after the event so you must make sure to get the form stamped by the clerk in court.

Thursday, 3 September 2009

Community Based Assessments: London & SE

I have finally tracked down the contact information for Coral Community Assessments who can be found at 81 Oxford Street, London W1D 2EU (tel 020 7903 5118). Coral is staffed by some ex-Jamma staff. Jamma Umoja itself continues to offer community based assessments.

Wednesday, 2 September 2009

Domestic Forum Shopping?

Pannones, the Manchester law firm, have carried out research to confirm that regional variance in divorce awards does exist, according to a piece in The Times.

The research trawled 1,500 cases handled by its own lawyers since 2007 and also drew on findings from divorce lawyers at 20 roadshows in England and Wales, where Andrew Newbury, a matrimonial partner at the firm, a hypothetical divorce. He concluded

"There was a very clear difference. Generally in the North judges tended to favour a clean break or limited maintenance, taking the view that the wife could stand on her own two feet.”


but added that this was not because judges are making incorrect rulings but becasue of the wide discretion they enjoy.

The full story can be found on the The Times website.

Friday, 28 August 2009

Equal opportunities for family carers

Some important rule changes have been made to allow relative carers the same entitlement as local authority foster carers to apply for residence or special guardianship by The Children and Young Persons Act 2008 (CYPA 2008) (amending the Children Act 1989 (the 1989 Act)).

At present, local authority foster carers, who have had the child living with them for one year immediately preceding the application, are entitled to apply for a residence order without the leave of the court. Relative carers are only able to do so with the leave of the court, unless:

They are local authority foster carers who have had the child living with them for one year immediately preceding the application (who are subject to child protection checks)

  • Have had the child living with them for three out of the last five years; or
  • Have the consent of every one with parental responsibility for the child
Sections 36 to 38 of the CYPA 2008, which comes into force on 1st September, adjusts the 1989 Act:

  • Entitling all relative carers to apply for a residence order and special guardianship orders under the 1989 Act if the child has lived with him/her for a period of at least one year immediately preceding the application; and
  • Raising the age at which a residence order automatically ends from 16 to 18 years of age.
  • Raising the age limit, at which a residence order automatically ends, from 16 to 18 years, will provide greater stability for the child. The changes will also facilitate continued financial support for carers’ entitlement, which ceases at the end of the residence order (normally 16 years old at present).
Prior to the implementation of the CYPA 2008, a residence order ceases to have effect when the child reaches 16 unless the court is satisfied the circumstances are exceptional.

The CYPA 2008 changes this so that a residence order will last until the child reaches 18 unless the court directs otherwise.

The following court forms and leaflets have been amended to reflect these changes:

  • C13A – Supplement for an application for SGO
  • CB1 – Making an application – Children and family courts
  • CB4 – Special Guardianship – a guide for court users

Wednesday, 26 August 2009

Social Work Recruitment

The drive to increase social work recruitment now includes a celebrity advertising campaign which you can see here. It involves Goldee, Samantha Morton and Michelle Ryan amongst others.

Meanwhile the difficulties managing workloads continue unresolved, both in CAFCASS and Local Authority social work.

Wednesday, 19 August 2009

The Silly Season?

Lest you think that along with half the world I have been on holiday throughout August which might explain the lack of posts to this blog, let me instantly disabuse you. I have been here throughout the month but for some reason there has been a quite unprecedented level of work at the Bar. Usually I look forward to a bit of slacking during August and use the time to catch up on writing and so on. Usually I am in court about 3 days a week, generally dealing with relatively short matters just to keep cases ticking along. This year has been different and everyone I have encountered at court is reporting the same thing. I have had relocation cases coming out of my ears - no doubt listed to get heard before the start of the school term. But that does not explain the volume of care cases. Of course, if you are not on holiday and a family practitioner, the irony is that even if I had posted, you probably would not have had time to read the blog anyway!

Be reassured, however, that there has not been a great deal happening in family law other than the daily grind, apart from a flurry of re-interest in Baby P following the naming of the family and the news of the social work team's challenges to the sackings.

The other alarming feature of family work at the moment is the shortage of Guardians about which there has been much heated debate in the Cafcass Google group. I understand that in London there are now over 400 cases waiting to be allocated. I have also been told that the plan to solve this problem is simply to allocate the cases. This, of course, will not solve the problem at all. Cases will come off a waiting list for allocation but if there are not the practitioners available to do the work we will still be waiting sometimes for months for the Guardians to be able to carry out any sort of effective role. I have had my first case (and the first of its kind for the court as well) which went through from start (February) to end (August) without a Guardian being allocated at all. In another case, the Guardian was allocated but simply had no time to do any work and had not by the time of the final hearing met any of the main family protagonists, nor the child. Despite the President's guidance on interim measures, I am not aware of anything being implemented and have yet to encounter a duty Guardian scheme.

This is what Cafcass are saying in one area at least about the prioritisation of cases:

We are prioritising on a predominantly safeguarding basis, i.e. High priority cases are those where very vulnerable children (due to age, disability, or nature of harm) are currently at home with the alleged perpetrator and/ or with no apparent adequate protector (under no order or on an interim order) or remain exposed to harm in some other way e.g. through threat of abduction, suicide/ self harm. We are allocating these cases as fast as we can, while also slipping in some applications that have perhaps already been waiting for allocation of a Guardian for a considerable period

The next priority category, Medium, relates to cases where vulnerable children are in foster care or other suitably assessed placement (with or without order), and are therefore safe in the short term. This category might also include cases of older children where there are particular complexities e.g. risk-taking behaviour etc.

The Low priority cases are where children are in foster care or other approved placement and on the face of it there are few complexities and/ or few assessments are anticipated e.g. cases where there have been recent final orders made in respect of siblings and the respondent child is in foster care, or cases where the child is in a safe placement and a discharge of an existing order is sought.
In my case without a Guardian being allocated at all the solicitor representing the child (in foster care, waiting for the court's approval for an SGO to the grandmother) was categorised as low priority and he was advised that the earliest likely allocation of a Guardian for a medium risk case was November, with low risk cases likely to remain unallocated until December - January 2009.

How was your barbecue summer?

Sunday, 2 August 2009

Family / Law Issues on Radio & Tv

The Chambers Part 2

Interesting piece about CRB Checks & Secret Letters on Ipm on Saturday and see this blogpost

In Divorce: Jewish Style, Channel 4's Revelations Series about the impact of religion tonight covered the "chained women" because under orthodox Jewish law only the husband can initiate the religious divorce or get. See also The Independent's coverage

Lynn Featherstone asks questions about Baby P on BBC News

Friday, 31 July 2009

Who's the Daddy?

I almost missed this piece by Gary Slapper on 17th July >Weird Cases: who's The Daddy so thanks to my colleague rising family law star Louise MacLynn for pointing it out to me. The article put me in mind of an answer given to a friend by a working girl she was cross-examining.

Question: "How long did you know the child's father?"

Answer: "Long enough!"

Twitter

Family lawyers are rather under-represented on twitter but if you are wondering whether to join and who to follow here are a few suggestions.

Me obviously - gjacqui. Lucy Reed - lucindee. Family Law Week itself - familylawweek. John Bolch - johnbolch & also familylaw. Solicitors - Woolley & Co - woolleyandco, Panonne - TheSolicitors, Fisher Jones Greenwood - FJGSolicitors, Stephensons - Stephensons, Latimer Hinks - LatimerHinks. Barrister Miss Erica Carleton - familybarrister. Divorce support services - ukdivorce, wikivorce, divorceadvice, divorceonlineuk. Other legal twitterers - UKParliament, inner-temple, lawandmore, thedivorceshow.

And though not family lawyers - Geeklawyer, Charonqc, babybarista, timkevan.

Let me know if you are a family lawyer on twitter.

Of course, it had to happen: government guidelines on the use of twitter . Not long before the LSC will have a few paragraphs in the Funding Code.

Monday, 27 July 2009

Interim Removal of Children from their Parents: Re L & Re L-A

The Court of Appeal's judgment in Re L-A has now been published on the main site. I do not take the view that this case has diluted the 'imminent risk of really serious harm' test in approaching interim remmoval (as Ryder J expressed it in Re L ). What their Lordships have said is that Re L did not alter the law in the first place

In my judgment it is clear beyond argument that HHJ Cleary construed paragraph 10 of the decision in Re L as a decision that altered the law and that raised the bar against the applicant local authority. By that evolution he was bound and only the Court of Appeal could unbind him. For the reasons already sketched, that, in my view, was a misdirection. Plainly the judge was wrong to think that the words of Ryder J that there should be an imminent risk of really serious harm prevented him from doing what he instinctively felt the welfare of the children required. That that was his instinct seems to me to be plain from paragraph 160 of his judgment.


Their Lordships did not substitute their own decision for that of the Judge and have remitted the issue of disposal (the LA agreeing that they should do so) saying

Although that is an unattractive course it is a necessity given that in the interim it seems that here have been no fresh causes for concern and that, given some extra support that has been introduced, some improvement has been noted in the mother’s standard of care. Another pragmatic reason is that the local authority recognises that any short term placement should keep these four children together and that they will need time in order to find such a resource.


To my mind, the effect of this judgment when viewed in its entirety is not to suggest that there is anything wrong with Ryder J's formulation of the approach to interim removal but that such cases require careful analysis & consideration of the evidence, particularly in the chronic neglect case, and the reasons cited for disposal indicate just why these cases are so tricky at an interim stage. See my earlier post . There is, perhaps, an argument for saying that the chronic neglect case involves a situation in which children are always at imminent risk of serious harm. But much depends on the nature of the feared harm. Removal might well be justified in the sort of cases where the neglect concerns can be shown to involve a continual series of 'accidents' requiring medical attention or continual rough handling or where a parents' lack of understanding of child care issues generally results in just below par parenting but with occasional potentially very serious issues (such as inability to administer medicine appropriately) or a continued association with a sexual offender. There will remain cases of a much more borderline nature where the court may feel that although the concerns are serious they can be sufficiently contained on an interim basis with an appropriate support package or that at the very least they can be sufficiently contained until a hearing can be organised which provides a proper opportunity for the parents' representatives to read all the papers (usually voluminous in a chronic neglect case) and make representations or even directly challenge limited parts of the evidence which tend to suggest that some critical point has been passed which tips the case over into removal.

Saturday, 25 July 2009

Baby Barista and the Art of War


No doubt a number of pupils were secretly rather relieved when the identity of the author of the Time’s Baby Barista blog was finally revealed in the Times to be Tim Kevan so that the finger of suspicion was no longer pointing at them. I have long been a fan of the blog describing its style elsewhere as Henry Cecil on speed. Every new pupil of mine (Natasha, take note) is lent a copy of Brothers-in-Law by Henry Cecil which, although now a little dated, describes the life of a post-war pupil along with some of the more quaint traditions of the bar. The book was also made into a very fine film starring Ian Carmichael & Terry Thomas (and later a radio & tv programme starring Richard Briers) and was one of a series of legal novels written by Henry Cecil who became a Judge in 1949 & used to sit in Clerkenwell & Shoreditch, I believe. I am also rather fond of the follow up book – Daughters-in-Law for obvious reasons. You can buy the books from Amazon

For more pupil lit I would also thoroughly recommend the appropriately named The Pupil by Caro Fraser (Henry Cecil on Viagra?) the first in her delicious serious about Caper Court Chambers and the gorgeously seductive Leo. Caro’s take on lawyers is that we are all crippled inside as she puts it.

If I had any doubts about how the Baby Barista column might stand up as a book (especially as I have read it already) they are entirely dispelled by Baby Barista & the Art of War (which you can also buy from Amazon . The whole is most definitely greater than the sum of its parts and it’s lovely to have it all in one place so you don’t have that feeling you have missed an episode. It’s just as witty on re-reading. And just as much fun trying to match the characters to real life barristers (& please don’t tell me who I remind you of & I will return the courtesy!). But, of course, none of it could be true could it?

One particular passage made me wince. TheBoss to his pupil:
“..we start off in this job with so much potential. The world is our oyster and we can do anything we choose. We then spend years taking ourselves further and further away from the mainstream until we are so specialised that if we were to jump ship there would not even be a life-raft nearby. We are good only for being barristers. Otherwise it’s straight back down to the bottom of the pile aged forty-four”.
Substitute ‘family lawyer’ for ‘barrister’ and it sums up many of the conversations I have been having with family practitioners in recent months.

And SlipperySlope:
“The law’s not about ivory towers or wigs and gowns. It’s about one thing and that’s costs. Not justice. Not rights. Not defending the innocent or prosecuting the guilty. It’s cold, hard, stinking cash. Your time, literally, is money. You sign away your life, but for a price of which even Faust himself would be proud.”


Fortunately, these are atypically bleak moments in an otherwise hugely enjoyable debunking of the world of the Bar. But is Baby Barista really as Machiavellian as he is made out to be? Most of his victims are odious and richly deserve what they get. He has far too soft a spot for OldRuin whose life he saves, returning a brief to do so & upsetting his HeadClerk (is he mad?). He loves his mother despite her embarrassing appearance at the chambers’ tea party bearing cake. Part of his drive to succeed in the tenancy stakes is the desire to keep her from hookey street. And then there is the fragrant Claire for whom he is clearly destined so long as she doesn’t find out the full extent of his shenanigans. If there is a moral to this amoral story perhaps it is that inside every barrister is a nice person trying to get out?


John Bolch’s review

CharonQC's review

GeekLawyer's review

Thursday, 23 July 2009

Law Central: Times law blog

The Times has a law news blog Law Central .

Times Law100

The Times picks its top 100 influential lawyers today and includes Baroness Hale, Nick Mostyn, Judge Isobel Plumstead, Sir Mark Potter & of course Fiona Shackleton.

Thursday, 16 July 2009

Judge TV - On BBC Tonight

A BBC programme entitled 'Death of Respect', in which Coleridge J has a part, is being shown tonight at 11.20pm on BBC 2.

The programme, which is about the state of family life in this country, could be well worth watching. It is very unusual for a High Court judge to take part in such a programme. Originally it was intended to go out at prime time; but it is now being shown in the graveyard slot. I for one will be watching to find out what interest it may hold or what controversy it may provoke.
Click here to watch episode 1 on BBC iPlayer

Wednesday, 15 July 2009

FAMILY LEGAL AID PLANS TORN APART IN DAMNING JUSTICE SELECT COMMITTEE REPORT

Legal Services Commission proposals to cut legal support for vulnerable children and families have been savaged in a damning report from the all-party Justice Select Committee.

The report, published today, concludes that 'proposals for reform were based on incomplete data, [and] a superficial understanding of the supply of legal services in this area'.

The LSC's approach to reform is condemned as 'flawed, weak and inflexible'. It is criticised for a 'conclusions first, evidence after' approach to policy-making, having commissioned Ernst & Young to gather data to inform its thinking after proposing swingeing cuts to the system.

Commenting today, Chairman of the Family Law Bar Association (FLBA), Lucy Theis QC said:
'Surely now the LSC will wake up to reality: its plans for family legal aid are unwelcome, unworkable and unwanted.

'On reading this report, Justice Ministers will realise that the LSC has failed a basic test of competence when it comes to delivering reform.

'The Commissions determination to bulldoze through ill-considered changes without proper evidence or any analysis of the impact upon budget or diversity risks irreparable damage to the protection of vulnerable children and families.

Desmond Browne QC, Chairman of the Bar Council added:
'This is a simply devastating condemnation of the LSC's hapless efforts at reform. It shows that it is not practitioners who have pushed up the cost of legal aid. The LSC’s proposals were based on flawed data and were introduced without any prior assessment of the economic impact or the consequences for women and BME practitioners.

‘As the Committee says, without qualification, this is discriminatory. It is wholly inconsistent with the Government’s desire to see a more diverse pool of advocates from which in time a more diverse judiciary can be appointed.

He added:
'The Committee has endorsed every single one of the concerns of the FLBA and the Bar Council.

‘The Committee has confirmed our warning that there is a serious risk of an exodus of experienced practitioners from publicly-funded family law practice.
'The time has now come for Ministers to act on our concerns. As the Committee says: “there needs to be fundamental change of attitude on the part of the LSC”.'

Monday, 6 July 2009

Dorothea Gartland of 4PB named Outstanding Newcomer in Child Law



Dorothea Gartland, of 4 Paper Buildings, was named as the Association of Lawyers for Children's Outstanding Newcomer in Child Law. The award is made each year after the Hershman / Levy Memorial Lecture, which this year was sponsored by Family Law Week. The other nominees for the award were Jas Tamber and Emma Hollywood.

The lecture itself was presented by the President of the Family Division, Sir Mark Potter before an audience of over 100 judges, legal professionals and others working within family justice. The speech, Family Justice at the Crossroads, tackled the many resource problems facing family justice and also outlined his plans for temporary local arrangements to ease the burden on CAFCASS. More on this and the full text of the speech can be found on the main Family Law Week website.

Tuesday, 30 June 2009

Biking for Children In Care



I am sorry the blog has been a bit neglected in June. For some of the time I have been off cycling 250 miles to raise money for the Who Cares? Trust with Biking for Children in Care 2009 - in the Loire Valley. This is the 4th year I have joined the team which has raised a fantastic £290,000 to put towards improving the lives of children in care. I was in great company as usual as the picture shows - Judy Bishton, Barbara Hopkin, Deborah Marsden, Claire Holland, Kate Tindale and myself were the family lawyer contingent. The whole group numbered about 50 and included many Cafcass Officers & Guardians, our friends, family, judges as well as psych on a bike Cosmo Hallstrom - and if they weren't cycling they were in the support team who fed us and made sure we had water and rescued us from breakdowns. We set a record this year (unintentionally) by cycling 90 miles in one day!

At any one time there are at least 74,000 children separated from their families living in residential or foster care. The Who Cares? Trust was established in 1992 to help address the needs of these children. They work to improve their day to day lives and to ensure every child in care receives the support they need to enjoy life and achieve. They are best known for Who Cares? Magazine which reaches 25,000 young people in care every quarter. Current activities also include projects to help improve the employment opportunities and educational attainment of children in care.

Last year the Biking for Children in Care event raised over £40,000 for a project to help foster carers and residential care workers to better support the children in their care and help them make informed decisions about education that will improve their life outcomes. This year money raised from the event will support a highly important project which will improve the literacy skills of children in care and help them express themselves through creative writing and will also support the general running costs of the charity.

Donating through Justgiving is quick, easy and totally secure. It’s also the most efficient way to sponsor me: The Who Cares? Trust gets your money faster and, if you’re a UK taxpayer, Justgiving makes sure 25% in Gift Aid, plus a 3% supplement, are added to your donation. And if you don't want to sponsor me and my husband there are plenty of other options below!

Jacqui & John's Justgiving page
Claire's Justgiving page
Judy Bishton#s Justgiving page
Kate Tindale's Justgiving page
Deborah Marsden's Justgiving page
Barbara Hopkin's Justgiving page
Wells Street Cafcass Justgiving page

Monday, 22 June 2009

"Tycoon"s passport seized in divorce proceedings

The Sunday Times has reported that a property developer tycoon has had his passport seized to prevent him fleeing abroad after he claimed that he was penniless and not worth £400m. Mr Justice Charles reportedly made an order allowing the Sunday Times to report on the case and

"There is a £400m starting figure. I expect some documentation to show where it has all gone. There isn’t any at the moment”

Friday, 19 June 2009

Baby P - Prosecution Appeal has 'No Realistic Prospect' of Increasing Sentences Imposed

Baroness Scotland last month considered whether to refer the Baby P matter to the appeal courts after "widespread outrage" at the perceived leniency of the sentences imposed.

After consideration, the AG is now of the view that such an appeal brought by the prosecution in an attempt to increase the sentences would have no realistic prospect of success, writes Afua Hirsch of the Guardian. The sentences, says the AG, were within the appropriate guidelines.

Sentences of indeterminate length for "public protection"were imposed for the mother and the lodger following conviction. In the case of the mother a minimum term of 5 years was specified.

Fewer than 50 defendants who have received an IPP (Imprisonment for Public Protection) have been released at the minimum term date.

Wednesday, 17 June 2009

Research into Children Act Published

As we reach the 20th anniversary of the implementation of the Children Act 1989, Solicitors Mischon de Reya will today publish research on the experience of children who are caught up in court proceedings when their parents separate. In many respects this study will perhaps tells us nothing surprising: Sandra Davis from Mischon's summarises the findings thus “This research demonstrates that the legal process does not work when parents use their children as emotional footballs. Not only are warring mothers and fathers damaging their children, they are costing the tax payer millions which could be spent so much more constructively". She proposes that greater use should be made of parenting classes, to educate parents about children's needs and how to co-parent after separation. Of course this was one of the intentions behind the contact activity directions enacted by the Children & Adoption Act 2006, but in practice the measures are little used because the courses are not available.


Some of the more striking figures contained in the research are:
- 19% of those surveyed felt they had been ‘used’ by their parents
- 17% of children have been involved in violent bust ups between divorcing parents
- 42% witnessed aggressive rows - 49% were forced to play parent and comfort a crying mother or father.
- A quarter (24%) admit they were forced by one parent to lie to the other
- A further 15% were asked to spy on their mother or father
- 21% of those surveyed said they had no faith in their future relationships and would never get married themselves.


The study is based on a survey of 2,000 individuals who'd experienced a divorce as a child in the last 20 years (and, one assumes, are now adults), so it's not clear how reliably this research can paint a picture of children's experience in, say, the last five years. But food for thought nonetheless...

At the time of writing the research has not been published, but readers may want to check on the Mischon De Reya website. I will post a specific link when available.

Thursday, 4 June 2009

Go Girls!

Yes Ladies, we can have it all. The Times publishes today an interesting piece about Judge Sylvia de Bertodano who has recently been appointed part time as a CJ.

Postscript 9 June: See also Rachel Langdale QC's letter to the Editor today in response.

Tuesday, 2 June 2009

Panorama on Southall

The BBC's Panorama strand last night featured a sympathetic programme on Dr David Southall in the wake of his recent failed attempt to reverse the GMC's decision to strike him off the medical register.

You can watch the programme on the BBC iPlayer service using this link

Friday, 29 May 2009

Cafcass summoned on waiting times for Guardians

The head of the children’s court agency was summoned by a judge yesterday to explain “deplorable and entirely unacceptable” case delays after the Baby Peter scandal: see this report in the Times

Wednesday, 27 May 2009

BNP on Family Law

Check out Lucy Reed's interesting post on BNP policy & family law .

Baby P

Lots of news about Baby P and the latest reports over at Community Care .

Row over computer expert & evidence

A chief constable could face jail and an end to his 35-year police career for defying a High Court order to return computers suspected of holding a huge collection of child abuse images to a controversial expert: see the full story in the Times .

Local authority's housing duties towards children

In the case of R (on the application of G) v Southwark {2009] UKHL 26 the House of Lords has decided that homeless children should be looked after by local authorities’ children services departments rather than by housing services.

Comments on the case can be found in the Solicitors Journal and Nearly Legal

Friday, 15 May 2009

Baby P: a never ending story

From the Times the inquiry into NHS failings, conducted by the Care Quality Commission and published this week, concluded that doctors and other health professionals had contact with the little boy 35 times but every chance to raise the alarm was missed. Any one of these professionals could have picked up that he was suffering abuse if they had been “particularly vigilant” and gone “beyond what was required” by the system, the health regulator said.

The Times also summarises the reports published so far .

Evening Standard reported that a senior doctor told how he had repeatedly warned about failings at the child protection clinic which missed the injuries that killed Baby P. Professor Sundara Lingam told the Standard that he had written a series of letters raising the alarm over problems at the clinic in St Ann's Hospital in Haringey when he was director of community child health and follows it up today with a story about the alleged spin campaign by GOSH with Lynne Featherstone,MP for Haringey where Baby P lived, saying that the children's hospital's chief executive, Jane Collins, “misled” the public after revelations about problems at the child protection clinic in St Ann's Hospital, Tottenham, which Great Ormond Street runs.

Wednesday, 6 May 2009

Laming 2: the Government Response

No sooner had I finished the last post when the Government response to Laming 2 was published on the DCSF website.

Post Baby P update

Baby P news continues at a rate of knots and we can now apparently refer to him as Baby Peter.

Community Care covers the Government's response to Laming 2, following an interview with Moira Gibb. The official response is expected later today.


The Mail gets outraged by the conviction of the boyfriend for the rape of a 2 year old and his apparent intention to appeal.

The Times reports that Haringey will do more navel gazing on how this happened and was not spotted by social workers.

Community Care reports that another 4 social workers have been sacked by Haringey.

Laming himself calls on child protection managers to protect their staff and shoulder more responsibility.

Members of the public would be appointed to child protection boards in an attempt to avoid more scandals like the death of Baby P says the Telegraph

Monday, 4 May 2009

Costs Orders - The Movie

If you like a good juicy costs judgment you'll love this (Hashem v Shayif & Ors [2009] EWHC 864 (Fam) (17 April 2009)). More twists and turns than a Hollywood blockbuster and a cast almost as big.

Although I don't generally aspire to read costs judgments (or any judgments at all) on a bank holiday Monday this is actually surprisingly interesting and informative, and deals with a number of points arising from costs issues involving third parties (family company and and the children of the family) arising from both ancillary relief proceedings and related Chancery proceedings, costs orders against one party that he should pay the costs of the other party incurred in other litigation, and costs orders where the paying party is publicly funded.

Thursday, 30 April 2009

They f*** you up , your mum and dad

Lord Justice Wall quotes Philip Larkin at warring couple in a custody battle. Surprising it is not done more often. I have been in two cases recently where litigation of one sort or another has been going on since the year 2000.

The full judgment is now available on Family Law Week

Wednesday, 29 April 2009

Media access to family courts: Day 3

Still not actually seen any journalists myself. Yeovil County Court obviously of no interest but none apparent in the RCJ yesterday either.

Plenty of comments in the papers, however.

The Times reports on comment by Alison Stevens and others that files are being witheld from parents by social services.

The Press Gazette bemoans the lack of access to documents & calls on more journalists to 'pick up the torch'.

Camilla Cavendish comments on the family justice system in general, & expresses concern about the fee cuts.

The Independent goes to Gee Street & comments on the indecent haste with which the regulations were introduced.

AFua Hirsch comments in the Guardian calling for a lifting of the reporting restrictions.

Caroline Little from the ALC debates with Camilla Cavendish on Women’s Hour about opening up the family courts - listen again here . It is the first item on the programme.

Adam Wolanski's article on the main Family Law Week site summarises the rules & Chris McWatters' article sets the reforms in context with comments from Stephen Cobb QC.

But the for the real truth about family cases see John Bolch . To which I might add that clearly family barristers get paid far too much moneyh & hardly have to do any work!

Tuesday, 28 April 2009

Media access to family courts: Day 1

I can't say I noticed a deluge of reporters in the Hertford FPC where I was yesterday but clearly the press were busy.

The Guardian comments here.

The Times goes to Barnet County Court, and links to further stories about Manchester, Ipswich, Cardiff, Bath & Central London.

The Telegraph bemoans the damp squib.

And more from the BBC , Independent , Daily Mail . So far silence from the Sun.

The Mail also reports on Jack Straw's fury at civil servants sabotaging open justice .

Jack Straw himself says that
"existing reporting restrictions for the newly attending media will of course still apply to protect children and families, but I want to ensure a change in the culture and practice of all courts towards greater openness, and this is an important step towards that goal."

Sunday, 26 April 2009

Grand Opening Monday

Monday is the implementation date for the changes to the family proceedings rules, shifting the presumption in favour of permitting media entry into family proceedings. The new rules, Practice Direction and President's Guidance Note applicable to the new regime can be found on the Judiciary website here. Will there be a rush to the doors on Monday m0rning?

Monday, 20 April 2009

Report on Looked After Children Published

In the press this week is the publication of the House of Commons Children, Schools and Families Committee - Third Report on Looked-after Children. Press coverage has focused on earlier intervention by removal into care, the inadequacies of foster placements and a possible shift towards residential homes for children.

However the report is vast and there are a number of insightful conclusions, for example the proposition that the focusing of the efforts of social workers onto child protection is driven by resource constraints and public perception of the profession, and is less than ideal. The report concludes that this has the effect of distracting attention from the potential of social work to effect positive change in families, and makes the stakes of interaction too high (the fear that social work=removal into care). The report recommends that social workers should be freed up to work with families before problems become acute, and raises concerns about the extent to which administrative tasks prevent social workers spending time with families. Many social workers are likely to welcome a move back towards 'proper' social work - the business of getting out and working with families rather than form filling - helping struggling families to get along, rather than taking over parenting once things have fallen completely apart.

Thursday, 16 April 2009

Fee cuts

The Solicitors Journal reports that barristers have reacted furiously to the LSC’s decision to call in Ernst & Young to report on the impact of changes in the way advocates are paid for family legal aid work.

Wednesday, 15 April 2009

Care proceedings roundup

The Times accuses Jack Straw of a confidence trick over media access to the courts and Lucy Reed comments as does Camilla Cavendish .

The Guardian reports that child protection authorities yesterday said they hoped to return an eight-year-old boy to his mother who had hit him with a hairbrush as soon as possible, but defended their decision to take him into care.

The BBC covers children in secure units to accompany their broadcasts Inside the Child Prisons Episode 1 .

Also on the BBC : police mistakes meant a chance to charge Baby P's mother with assaulting him was missed several weeks before his death, an unpublished report says. The same story in the Guardian .


The Times reports on an eight-year-old boy taken into care in Yeovil because his mother smacked him with a hairbrush for refusing to get dressed for school. The Guardian follows up with the Council's response and its hopes to return the child to the mother soon.

From Community Care - three social workers have been disciplined by Haringey Council after the north London authority found a backlog of child protection cases had not been dealt with in the wake of the Baby P scandal.

Fee cuts

In the Times Frances Gibb writes about the reaction to the fee cuts from the ALC, the FLBA & the Family Justice Council & barrister Belle Turner says she can't work at the new legal aid rates .

Cross Border Mediation

Last summer, to very little fanfare by family lawyers, the UK adopted the EU Directive on Certain Aspects of Mediation in Civil and Commercial matters. This Directive will work to strengthen mediation for cross border EU family disputes and inevitably will therefore also impact on domestic mediation.

The preamble makes clear that civil matters include family cases although the Directive is not intended to apply to “rights and obligations on which the parties are not free to decide themselves under the relevant applicable law”[preamble para 10]. Although the UK has until 2010 to bring the Directive into force, the effect will be marked as the Directive sets out the obligation upon the UK to provide for proper mediation services to deal with cross border disputes.

The Directive provides in terms for mediation agreements to be enforceable across Member States which would provide an answer for cases crossing jurisdictions where the mediation has taken place in only one jurisdiction [Article 6].

In addition the Directive sets out clearly the mediation confidentiality that is expected and provides that it shall apply to all mediations save for in cases of public policy exceptions or to protect adults or children from harm... [Article 7].
Interestingly enough Article 8 provides that where cross border mediation has been used, limitation periods will effectively be suspended whilst the process is ongoing. Quite how this will tally with the impetus to be first past the post in relation to Brussels II R has yet to be worked out.

On 6th May 2009 Thomas More Chambers will be hosting a mediation seminar in which all these issues and more will be dealt with “All your questions answered – mediation and family therapy”. Suzi Power , an expert mediator and experienced mediator trainer with Resolution, will be the guest speaker at the seminar further details of which are available from www.thomasmore.co.uk

Sarah Lucy Cooper
Barrister, Thomas More Chambers
www.thomasmore.co.uk
Resolution Mediator specialising in cross border disputes in particular with Spain
www.euromediation.co.uk