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.

Tuesday, 31 March 2009

Fee cuts

The FLBA response to the fee cut proposals .

Southall to appeal

Paediatrician David Southall is to begin an attempt to overturn a General Medical Council (GMC) decision in December 2007 to strike him off the medical register (for the second time), the BBC reports.

You really didn't want to do that!

I wasn't going to post about this but now I've got to for reasons which will become clear when you read Geeklawyers' blogpost about Marc Beaumont . Warning may contain some offensive language but almost certain to make you smile.

Thursday, 26 March 2009

Open Sesame!

I have just spent a couple of hours listening to the interesting thoughts of Hedley J, Alison Russell QC & Professor Fortin on the opening up of the family courts.

I was rather shocked to learn that according to the MoJ, the statutory instrument containing the new rules is due to be published in Parliament on 6th April 2009 and will take effect from 27th April 2009. As yet there has been no publication of the draft rulesn so that the only people who have actually seen a copy are the Family Rules Committee members. There has been no wider consultation or discussion with the judiciary. It is not even yet clear whether the rules will be accompanied by any guidance for the judiciary and practitioners.

We were told that it is likely that the rules will apply to all cases, whatever stage they are at, with immediate effect on the commencement date. It is also likely that there will be a presumption that accredited journalists (yet to be defined) will be given access and judges should only exclude them in exceptional cases. It will now have to be one of the standard points on which we take instructions early in the case, since journalists will be able to come into the hearing at any point. It also seems likely that journalists will not be given access to any of the documents in the case although they are likely to be able to be given summaries of judgments or anonymised transcripts. There is to be a pilot study (in Leeds, Wolverhampton & Cardiff) in relation to judgments to trial the placement of anonymised judgements online from some family cases so that the public can see how decisions were reached, give parties involved a copy of the judgement at the conclusion of their case so that they have a record of what was decided and why and to look at the practicalities of retaining judgements so that children involved in proceedings can access them when they are older. See Jack Straw's oral statement to the House .

However, it was pointed out that there seem to be no plans to repeal any of the protection provisions restricting publications such as the Administration of Justice Act or section 97 of the Children Act 1989 . Indeed the Government plans to take steps to reverse the decision in Clayton v Clayton. In other words, although the media will have access, their rights to publish identifying information will remain heavily restricted.

Hedley J appeared to be the most willing to embrace the changes. His view is that the decision in principle has already been taken, underpinned by a policy desire to restore public confidence in the justice system. His own experience of dealing with cases where he has allowed press access has been positive and he has found that journalists have reported the case in a sympathetic way, acknowledging the difficulties of the task facing lawyers in the family justice system. His view is therefore that we need to turn our attention to ensuring that as access is extended, anonymity and privacy are protected.

Alison Russell QC was more cautious and clearly retained grave reservations about the principle of media access, fearing that children may be damaged if their rights to privacy are not vigorously protected. She asked a key question: in what way will publicity itself promote or produce justice? She lamented that lack of thought that seems to have been given to the impact on children and how they are going to be prepared for the fact of media scrutiny.

Jane Fortin, as Chair, did not declare a position, but towards the end made a few remarks which suggested to me at least that she was not convinced that this is a step in the right direction, whilst acknowledging that much may depend on how the press behave. Her key concern was that it might put children off attending court something she would like to see happening more often. She was also troubled by the prospect of the press naming and possibly vilifying experts with the effect that they may decline to undertake child protection reports.

None of the panel had any objection to the prospect of anonymised judgments being more widely available, so long as it did not impose too much of a burden on the judiciary. No doubt the transcripts will all have to be paid for by the public funding certificates of the parties. All agreed that in any event it was helpful to write judgments so that children who wanted to read them in later life could make some sense of what the court had decided.

One thought which was expressed was that although there seems to be a media appetite for covering human interest stories, their minimal attendance levels at the family proceedings court (where in theory, the court is not closed) may indicate that media access as an issue will end up being a storm in a teacup. On the other hand as Hedley J said it will be interesting to see how the press deal with the first celebrity case.

18 new Domestic Violence courts

Justice Minister Bridget Prentice announced today that victims of Domestic Violence will receive extra help and support from 18 new Specialist Domestic Violence Courts.

At Risk from Registers?

Liz Lightfoot in the Guardian comments on research by the Joseph Rowntree Foundation ( Database State (opens a pdf file). It concludes that among a proliferation of government databases, the three causing greatest concern over legality, privacy and consent were set up to protect children.

Two other particularly good analyses of the report and background information are to be found in the Independent and the BBC .

Community Care reports that ContactPoint has been put on hold due to security issues.


Law In Action on Tuesday featured a discussion on cohabitees' rights which you can listen to again online or by downloading the podcast.

Fee cuts

I add to Anthony Hayden QC's thoughts on the proposed fee cuts in the Times in my podcast with Charon QC . Please listen and add your views to the consultation paper .

Open courts?

Following on the news item on the main Family Law Week website about the speech given by Mr Justice McFarlane to Resolution (with a link to the full speech) Frances Gibb of the Times has covered the story and the likely restrictions on journalists report family law cases. I am attending a lecture on this topic tonight to be given by Mr Justice Hedley amongst others and I will post a report on that in the blog.

Monday, 23 March 2009

Removal of children at birth without notice to the parents

I understand that at the Nagalro conference yesterday a Judge may have expressed the view that the judgment in Re L applied only to the facts in that case and that the threshold for removing a child under an ICO had not increased. I have never argued that the threshold has increased, but it is my view that the courts are now, and should, consider the question of removal very seriously and should not go there unless it is justified as set out in Re L. I am not sure I quite understand why Re L should be restricted to its facts, however.

In an earlier post I set out some examples of the sort of cases where removal will be justified. The Guardian today covers a removal at birth case . Baby D was born this month to a mother who is in prison for threatening her small daughter with a knife. Social workers from Bury Metropolitan Borough Council were afraid that if the baby's mother knew the council planned to put it up for adoption she might kill the child at birth. She had told a social worker that her children would be better off dead than in the council's care. Mr Justice Munby said: "It goes without saying that a newborn baby in the first seconds or moments of life is exceptionally vulnerable and that a distraught mother, who has already demonstrated her capacity to threaten violence to her children, would be capable of causing catastrophic injury to the child within a matter of moments." An immediate risk of really serious harm or what? Of course, this must depend on the alleged facts being true.

Another interesting point about the case is that the local authority was granted an EPO without any notice to the parents and without them being aware of the local authority plans to remove. The Judge had "no hesitation whatever in saying that in the highly unusual circumstances of this case that very exceptional step is, as it seems to me, entirely justified and indeed imperatively required in the interests ... of the as yet unborn child".

See here for the full judgment .

Wednesday, 18 March 2009

Something for everyone

From the Mail a mother whose adopted son has Down's syndrome is appealing for women to have a sexual relationship with him so he can lose his virginity.

Also in the Mail a couple whose two sons were killed by drink-driving footballer are barred from adoption - because they are 'still grieving'.

From the Times Lord Justice Wall calls for end to use of 'honour killings' term.

From Community Care Mrs Justice Black urges national eligibility guidelines for children's social care.

Again in the Times divorce fair eases the pain of splitting (see my earlier post about Breakup Angels who launched at the show.

The Telegraph warns that children are being put at risk by inexperienced surgeons and a lack of basic child protection training in hospitals, a damning report from the health watchdog has found.

The BBC covers the story of a mother who has been jailed for eight years for inflicting a "horrific" series of injuries on her two-month-old son, who died hours later.

Back to the Telegraph for a story about a man who funded his former lover's career, buying her jewellery, meals, and paying her household bills, and won a £7,000 payout after he sued her for the return of his money.

Community Care features Action for Children's efforts to bolster the case for increased investment in early intervention services for children the launch of a major new research project.

In this Guardian story the armed forces have been urged to overhaul their child safeguarding strategy after an independent review.

Long-term foster care has been overlooked of late as attention has switched to other models of care. Academic Anna Gupta reflects on research that suggests it deserves more serious consideration in Community Care.

Marilyn Stowe has a good post on her blog summarising the case of Paulin on bankruptcy & divorce .

Divorce: why being North or South of the Border makes such a difference (Times).

In the Guardian a father whose two children were abused by a teenager placed with the family by the local council has criticised the public for subjecting the social services department to a "witch hunt" and baying "for the wrong blood".

That's enough news, ed.

Legal Aid roundup

Following my earlier post on fee cuts I have been reading the FLBA'response to the Legal Servicces Commission consultation paper on Family Legal Aid Funding . The FLBA are requesting as many people as possible to respond to the consultation paper even if only to say that they endorse the FLBA response. It is not yet finalised but the essential points are on the
FLBA noticeboard .

The response makes good use of the work of John Eekelaar & Mavis MacLean CBE, Joint Directors, Oxford Centre for Family Law and Policy). In
“Legal representation and parental autonomy: the work of the English family bar in contact cases” (Hart Publishing, November 2007)
(a chapter in a book called Regulating Autonomy: Sex, Reproduction & the Family (Cambridge Socio-Legal Group) they say

The main task of the day for the barrister is client and judge management, grounded in close attention to the detail in the papers, which leads to negotiation and settlement. All those with whom he deals are highly stressed. The only friendly face is likely to be the barrister for the other side who will be a colleague or friend, and the only person in court who understands what the day is like… lack of sleep, no food, no personal space, physical or emotional. And at the end of the day he faces the final authority of the judge to make decisions, which he may find satisfying or profoundly unhelpful.

and they answered the question what are the skills and qualities which the family law barrister needs?” in this way:

These are: charm, quick intelligence and articulacy, but above all stamina! … the workload is heavy and unpredictable. Even the experience of shadowing was exhausting … the inability to plan ahead puts pressure on the barrister’s own family life…

And sum up the challenges of being a barrister:

Papers on the case will be sent by the instructing solicitor, often not arriving until late on the day before a court hearing, often incomplete, and without page numbers. Pagination might seem a minor irritation, but in practice it is a major concern as it affects the ability of counsel to direct the judge to a particular point, or refute a claim by the other side during a hearing. Papers are in heavy lever arch files, ranging from 3 to sometimes 30 per case, to be carried by the barrister to the hearing. Barristers type every word they produce, are responsible for all travel arrangements, and their own tax liability. They are basically self-employed lone operators sharing offices with a group with whom they are in competition for work.

Incidentally Eekelaar and MacLean have a forthcoming book to be published in May 2009 by by Hart Publishing Family Law Advocacy: How Barristers Help the Victims of Family Failure (also available on Amazon .

Additional press coverage can be found in the Times - Plans for more cuts to legal aid put families ‘at risk’ and on the Bar Council: Vulnerable women and children bear brunt of cuts in family justice system .

And if you want to hear my thoughts please listen to podcast with Charon QC .

Laming2: who's been saying what

Laming 2 itself

A list of the main recommendations is here .

See this story for the history of the Baby P case .

Community Care has published an excellent summary of the report & the reaction .

Ed Balls speech

Two hundred thousand children are at risk of violence or abuse in their own home, according to an official report from Lord Laming commissioned after the death of Baby P says the Telegraph .

Fathers have a vital role to play in keeping children save from abuse, according to Lord Laming's report in the wake of the death of Baby P also in the Telegraph .

And finally from the Telegraph, Social service chiefs are to be put through a new retraining programme amid fears that weaknesses in council management are risking more cases like that of Baby P.

England's largest social workers' union has claimed victory in the campaign for tougher regulation over managers following Lord Laming's recommendation to strengthen the employers' code of practice reports Community Care .

Children's services and social work leaders have broadly welcomed Lord Laming's report on improving the safeguarding of children, published today says Community Care again, and it also helpfully links to the main press coverage of the report . See also Ed Balls' reaction , CWDC and GSCC hail plans for post-qualifying training , Laming plan for national ICS is 'premature', warn experts , Protected budgets for safeguarding 'unworkable', say council heads , Sector comes out against degree split proposal , IDeA adviser says unit must not lead to 'micro-management' of councils .

From the Times comes Ed Balls promises intensive courses after shortcomings revealed by deaths of children under care of social workers and We must never leave children in danger just to save a £4,000 fee .

From the Guardian: Laming report: Managers who fail children must face disciplinary action & Patrick Butler, the Guardian's head of society, health and education, writes Protect the child - and the funding .

Related News

A REVIEW into the death of Baby P was branded “inadequate” by inspectors, it is claimed in the Sun .

Ofsted: 40% of SCRs in past six months inadequate

Doncaster SSD has serious weaknesses

Balls sacked Baby P chief under pressure from media, legal challenge alleges (the Guardian)

Ex-Haringey director accuses children's secretary of 'unlawful' decision-making (Community Care)

Children's lawyers & the NSPCC are calling for a public inquiry into the family justice system

Monday, 16 March 2009

“Move on now while your star is low in the sky": Ray Tooth's advice to men

Following the news that Brian Myerson (see earlier post) is seeking to appeal his financial settlement in the wake of his declining fortune, Ray Tooth, has given an interview to The Sunday Times providing some striking advice for wealthy couples seeking divorce now.

While he says that the revelation that Mr Myserson's wife now owned 105% of the matrimonial assets raised "a titter in court" he goes on to add that

“Wives would be better now to wait, as the courts are being very wary about awards because of the problem of the ability to make payments,..... Hang on in there until times get better.

As for the men: “Move on now while your star is low in the sky. You can escape with less"

The full interview can be read on The Sunday Times website

Thursday, 12 March 2009

Legal Aid Consultation Deadline Extended

Following requests from a number of Provider Representative Groups, including the Family Law Bar Association, the Family Legal Aid Funding consultation has been extended. The consultation will now close at midnight on Friday 3rd April.

Credit-Crunched Hubbies Queue Up At Court

Inevitably in come reports of credit-crunched husbands seeking to renegotiate settlements which have left them out of pocket. Mr Myerson complains the deal he struck will now see his wife obtain 105% of the matrimonial assets as a result of a fall in the value of his shares, much to his dismay. As Thorpe LJ apparently said 'that's a rum do', but do we sympathise?

Tuesday, 10 March 2009

Consultation on Violence Against Women

In the press this week is news of the launch of the Government's consultation on violence against women. The consultation document is a pretty easy read and contains some interesting information and ideas about the prevention of violence against women and ways to protect them from it (some of it likely to be controversial such as the idea of a domestic violence perpetrators register which has been the subject of public criticism already). I have had a brief read of it and notably absent is the mention of programmes to assist perpetrators of domestic violence to change their behaviour and lives.

The government recently brought into force the provisions of the Children & Adoption Act 2006 which includes the power to make contact activity directions including by sending violent fathers (or mothers) on perpetrators programmes. The provision is geographically patchy - supporting this new legislation and initiative would be one way of working towards reducing violence against women. If men can be helped to eliminate their violent or abusive behaviour they would not pose a risk to the mother of their children or subsequent partners, and the chances of their children repeating their patterns of behaviour would be reduced. Support for women is better but often clients I meed need psychological services not available on the NHS (or not available in a reasonable timeframe). If women can be helped through counselling or psychological services to become less vulnerable to abusive relationships, to make better partner choices they will be less likely to lurch from frying pan to refuge to fire. Not everyone is a candidate for change, but where it works it would be far more effecitve than putting a name on a register.

Monday, 9 March 2009

Removal from the Jurisdiction

I have finally updated the Removal from the Jurisdiction Case Library , In due course I will make it so that you can click straight down from the index to the case summary but it is at least no up-to-date as of 5.3.09. I will also be revising the main article on removal but that will take a little more time as I need to think about it and my brain is full.

Sunday, 8 March 2009

Barristers Meet To Discuss Public Funding Reform

Hundreds of family barristers and members of the Family Law Bar Association spent their Saturday morning yesterday meeting to discuss the proposed legal aid reforms and the publication of the report on the Family Bar, a substantial piece of research conducted by the Public Policy Unit at King's College London arising from the 'Week at a Glance Survey' conducted across the family bar in October.

The mood was sombre but defiant. Through video links to the central London venue from Brighton, Bournemouth, Bristol, Winchester, Swansea, Birmingham, Leeds, Nottingham, Newcastle and Manchester barristers expressed their concern about the impact of the cuts on both the bar and their lay clients - vulnerable parents and children who rely on the publicly funded bar to ensure that their corner is fought.

Much was discussed, but some of the key points echoed up and down the country were the failure of the LSC to make efforts to rein in the excessive costs of experts fees prior to slashing the advocacy budget, and the exodus from publicly funded work that would inevitably follow the cuts if made - creating legal aid deserts in terms of local availability of both solicitors firms and local bars.

Desmond Browne QC, Chairman of the Bar, attended having hot-footed it from an interview on the Today programme earlier that morning (in which the Justice Minister Bridget Prentice had asserted that an extra £4m had been ploughed into advocacy in care cases, without reference to the fact that this was a redistribution of funds towards base fees as a result of savings made from the reductions in SIPs payments, in fact an overall reduction in spend).

Lucy Theis QC, Chair of the FLBA, reported on the progress of meetings with ministers and the LSC, and on the recently discovered corruption of the financial and statistical data held by the LSC which forms the basis of the calculations for the proposals, which was an issue identified and raised by the FLBA and the Bar Council's statistician Martin Chalkley who had been asked on behalf of members to scrutinise that data.

There was much concern that members of the family bar are perceived by the public and characterised by the media as 'fat cats', but some comfort was taken from the contents of the Kings report which demonstrates that the family bar already work long and anti-social hours for comparatively low pay, and suffer high levels of emotional burnout. The report is embargoed until Monday, although this does not seem to have prevented the national press from reporting on it's contents already.

It was noted with some surprise that the bar had been criticised for failing to respond to the recently closed survey relating to SIPs, when in fact the FLBA had prepared a detailed response on behalf of its 2000 odd members based on membership feedback. Members were urged to respond to the present consultation individually by the deadline of 18 March.

Pink Tape will carry a post setting out some of the statistics contained in the report tomorrow, and as the national press report over the course of the next week links will be added.

Justice for Families

John Hemming MP has posted on his blog a series of videos from a meeting he recently held of the Justice for Families campaign. In the video he & some volunteers talk in particular about appealing cases both within the UK and to Europe and give a number of practical tips both about appealing and about the conduct of family cases in general. As usual it includes criticisms of the current system (some valid in my opinion and some rather more questionable) but equally as usual some very good points: the group are particularly concerned to promote an argument for the obtaining of second opinions in family cases, especially in respect of psychological and psychiatric messages.

The group also highlight the need to check out the experts' qualifications about this and you might like to refresh your memory of my earlier post picking up on research which shows that 3 out of 4 lawyers do not do this routinely.

John Hemming himself suggests that lawyers have a lot to answer for and that they are put into a position where they are set against the parents they are supposed to represent at an early stage and I will post more about this when I have had a chance to talk it through with him. I can see that there is something very uncomfortable about our role when it comes to considerations about appealing. At that point we are often expected effectively to act as judge & jury in considering the merits of an appeal (in respect of which the Court of Appeal has so frequently reminded us the bar of the hurdle is set very high) bearing in mind our duty to the public fund as well as our duty to the client. Like the Judge at first instance who will routinely refuse leave to appeal, it may be difficult for the advocate at first instance to see what may have gone wrong in the case, particularly with regard to their own conduct of it.

See the new website for Justice for Families which is still under construction.

The link is to John Hemming's blog rather than the individual posts so after a while it may be difficult to find. It was posted on 5th March 2009. On the same day he also posted a batch of videos of his 2 hour interview with Theo Chalmers about 'forced adoption'. I have not yet listened to all of it but certainly in the first section he makes a good point about the adverse effect of constant reorganisation of local authority departments. He also makes an allegation that the lawyer in a particular case conspired with the social worker to undermine his client's case and suggests that this may have happened in other cases & revives his concerns about a conspiracy to send children to Jersey on abuse tours. He also discusses the case going to Europe about mental incapacity and the OS (this is in video 4 & 5). This interview can also be found on You Tube by searching for edge media & john hemming.

On 28 February John Hemming posted the video recording of the meeting of agony aunts & journalists in the HOC and there is a link from Family Law Week .

Children In Need Assessments

Nearly Legal posts a piece about How Not to Carry Out a Child In Need Assessment following the case of R (MM) v LB Lewisham in which the LA was rather roundly criticised for their practices.

Saturday, 7 March 2009

Blooman v Blooman

A sorry tale which should serve to remind us all (much as we would all like to avoid arguing over the cutlery and the leather sofas) never never to forget to sort out the contents of the FMH: Blooman v Blooman [2009] EWCA Civ 109.

Court has power to commit a Director of Children's Services for contemptuous breach of s34 contact order

An interesting but very specific point arose in this recently published Court of Appeal decision in the case of A Local Authority v HP & Anor [2009] EWCA Civ 143: the court does have the power to endorse a penal notice addressed to a local authority on an order for contact with a child in care pursuant to s34(4) Children Act 1989, and where appropriate may commit for contempt of court if that endorsed order is breached.

There was no actual application to commit in this case, the issue on appeal was whether or not the penal notice should even have been endorsed. Thankfully the endorsement was warning enough and prompted compliance.

It is uncontroversial to say that a penal notice can only properly be attached where the order in question is actually enforceable by committal - it cannot be an empty threat. But the circumstances in which committal will actually follow are likely to be unusual or exceptional indeed. It is unusual enough for a local authority to simply defy the court, it would be more unusual still for it to do so under threat of imprisonment.

The Story of Mennard

A great new family law blog The Story of Mennard , the jottings and musings of middle aged barrister 'from up north'. His blog provides a commentary on his daily life and cases and he is introducing us to a range of interesting new characters.

Social Services Roundup

The Audit Commission concludes that, overall, England's 150 children's services departments "performed slightly worse in 2008 than in 2005", a period in which the ratings of council services such as housing, waste disposal and care of older people have consistently improved. ( Guardian )

Somehow Camilla manages to link to this in another piece about open access to family courts in which she is protesting about the alleged plans to restrict the media from identifying individual family members. Curiously, she also prays in aid the situation of Fran Lyons whose story received much media coverage. But, of course, Fran's case never reached the door of the court and she very sensibly skipped the country before it could. Simon Clayton's own comments in No2ABuse make interesting reading.

In a particularly shocking case a foster family's children ended up caring for a young person who went on to rape their own children ( Times ) when Glamorgan Council failed to warn them about his previous sexual offences (and see Community Care ).

Community Care also covers Haringey's new Safeguarding Action Plan - fundamental change and outstanding performance promised by 2012.

What would have been Baby P's 3rd birthday is marked by the Daily Mail .

Death by a thousand cuts

Many stories this week about Family lawyers & the fee proposals. See my earlier post on the fee changes for links to the key documents & Lucy's latest rant .

The Ministry of Justice has published the Responses to Reforming the Legal Aid Family Barrister Fee Scheme (pdf file) and seem surprised that only 4 individual barristers responded to this last consultation round. When one sees how much notice they have taken of the answers is it any wonder and is there much point in responding to the latest proposals? If you want to anyway (it might make you feel better) do so here but hurry: closing date is 18th March 2009.

The Law Society Gazette covers the FLBA earnings survey.

Frances Gibb in the Times covers both the research & the Bar's reaction to the fee cuts. Willy Bach, the Justice Minister, says the Bar receives £50 an hour for hearings. If he means under the new proposals he is of course not factoring in the amount of preparation.

Jack Straw himself in the Times has a go at the top earning legal aid lawyers and warns that those dependant on public funding will have to reconsider their expectations. Much is made of the rise in the number of lawyers - now at 1 in 400. What he does not say is that this does not mean that they are all dependent on public funding. Nor does this really make any sense as a concern re family lawyers. Does he think that the local authorities are bringing care cases just for the sake of keeping family lawyers in business? See Lucy's comments .

In the Evening Standard story the FLBA make the link to the risk to children & Baby P. Slightly tricky link as, of course, one of the problems with Baby P is that the case never got into court.

Tuesday, 3 March 2009

Guardians, shortage thereof

Law In Action today featured the issue of the shortage of Guardians and the impact on family cases. As usual you can listen again online or download the podcast.

Please note that the LSC intends to remove any option of the court appointing independent social workers to act as Guardians and will expect all such work to be covered by Cafcass! That should make everything better.