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.

Monday, 23 December 2013

Friday, 20 December 2013

Legal Aid: Experts Part 2

Kindly written & supplied by Jerry Bull (Managing Director of Atkins Hope, Solicitors in Croydon) & Samantha Little (Partner & Head of the Children Law Team at Russell-Cooke in Kingston) from their talk to the ALC Conference.


Terms

It is vital that all experts are fully aware of the rules that govern their payments and that you are covered when instructing them. There are recommended terms and conditions of business prepared by the Law Society which are very good and, if used should cover your back in most situations.

3 Apportionment between parties

3.1 S30 LASPO sets out that the court should not apportion liabilities of the parties for experts or disbursements based on the fact that one of the parties is on legal aid.

3.2 The recent case of JG v LSC decided that it would only be in exceptional circumstances that all parties would not be directed to share or at least contribute to the cost of a report. This seems to imply that all expert assessments should be shared but we still take the view that they should only be shared between those parties that have a direct interest in the outcome of the assessment. However in the light of this case you may well find that most assessments are now jointly funded.

3.3 If any party is unable to pay for whatever reason, it seems that it will be difficult for any expert to be instructed.

3.4 There has been no guidance as yet as to what would be exceptional circumstances. In particular, it is unclear whether the complete inability of a party to pay (as determined by the court in a hearing) would be sufficient if the court decided that the expert assessment was “necessary”. This will have increasing relevance to private law proceedings with virtually no legal aid now available and also to care proceedings if there is a party who is not legally aided.

3.5 We would suggest a careful reading of the judgment of Ryder J. We might suggest that there may be circumstances when there is an assessment of the child’s needs (without reference to the parents) or where the Guardian sets out that the assessment is crucial to his/her assessment. It might be possible to persuade the LAA that the child’s legal aid should cover this, but you should always apply for prior authority and you will have to draft a very detailed statement of case in support.

4. Risk assessments

4.1 There is guidance on approving higher rates for ISW when they are carrying out a risk assessment (the rate for risk assessment is £63 per hour)(see reference above). The guidance refers to the need for:-

• The court determining that a risk assessment is needed and
• The work needed is over and above that requiring independent social work expertise

The LAA set out an example of when the expertise may require the expert service to be treated as a risk assessment - there is a substantiated criminal allegation relevant to the proceedings in the immediate background of the case and a finding has been made by a court

4.2 It is not intended that this guidance relates only to sexual abuse cases as far as we know although that is the example given. It seems that it could equally apply to domestic abuse cases and NAI cases

4.3 It should follow that civil findings are sufficient to trigger this higher rate provided that the Court has determined that a risk assessment is needed and the work is over and above that requiring an ISW expertise. However you will need to approach these very carefully with detailed orders setting out the nature of the assessment and why specialist services are required.

5. Advocacy Support Services

This is where the client is supported during the proceedings or in court and to aid their understanding of the proceedings. LAA do not consider that these form part of legal representation and so are not recoverable from the fund.

6. Procedure to instruct

6.1 Family Procedure Rules now make clear that an expert has to be “necessary” rather than reasonably required

6.2 LA should identify any necessary assessment with its initial application

6.3 Advocates meeting before CMH should cover:

• Identifying all experts and establish availability and likely cost.
• Agree proposed questions and who is to instruct
• Who is to make application to court if not already made?
• Agree proposed apportionment and whether prior authority needed
• Why the evidence cannot be given by existing witnesses
• Who is to obtain any medical records?

6.4 Need to attend court with draft order setting all matters agreed above (ideally with letter of instruction) or, if no chance to have advocates meeting what is being proposed by the party wishing to instruct expert.

6.5 Judge still has to approve whether instruction necessary

6.6 All parties will be expected to have a view on the need for the expert

6.7 Expect a tough line to be taken on failure to comply with costs orders possibly following. It will be interesting (albeit worrying) whether a failure by solicitor which adversely affects client’s case could lead to negligence actions

6.8 The court will record reasons for failure in Case Monitoring system.

6.9 Keep LOI brief. Unless absolutely necessary we suggest you do not set out the background in detail. However, you will need to point any particular issues which may not be apparent from the papers. Ensure relevant deadlines are clearly set out for when report is to be filed and when the expert has to give evidence

6.10 Consider whether you need an experts’ meeting..

• Court is likely to want you to deal by simply asking further questions in writing. The problem for your client is that it is simply not the good as cross examination to challenge an expert.
• Consider whether the same thing can be achieved by “hot tubbing” at court
• If meeting needed then ensure there is a direction with clarity as to who is to chair, when questions are to be sent and whether you need a transcript.
• Assuming any experts’ meeting is by telephone ensure that you get a direction for costs of such meeting to be shared in the same way.
• Consider whether you want a transcript of meeting. It can help in that there is then an accurate record of what was said but some believe it inhibits experts and may prevent them from speculating over wider issues.

7. What to do if expert is late

7.1 Check that expert is on track well before deadline.

7.2 If anyone misses an appointment check if it will affect timetable

7.3 Notify court as soon as it is known that an expert report cannot be filed on time for whatever reason.

7.4 Court can consider whether to stop assessment entirely or require expert to give live evidence early.

7.5 If delay caused by instructing solicitor it will be recorded in case monitoring system and costs orders may start to flow if firm is a regular offender.

7.6 Obligation on all parties to notify court of any delay but particularly on solicitor for child.

8. Expert attending court

8.1 If expert to give live evidence get a separate direction with further provision for payment

8.2 If evidence being given by video link etc ensure a separate provision for payment of those extra costs

8.3 If court seeks to avoid attendance by further questions being put ensure costs of this are covered by a further direction.

8.4 Be careful not to prejudice client’s chances by agreeing to expert being sent questions rather than being cross examined.

8.5 Get dates to avoid for expert for IRH and ensure expert told of contested hearing date ASAP

8.6 Do not agree to expert charging a daily rate for attending court. It still has to be at hourly rates.

8.7 Send all updating papers to expert in good time.

8.8. Note the rules on cancellation fees (above) and do not pay these unless within the rules

9. Paying the expert

9.1 Ensure that invoice has:

• Your client’s name
• A complete breakdown of time taken
• Your client’s share
• The hourly rates set out
• Nothing on it that cannot be claimed (eg typing or postage)
• Expert’s address

9.2 If invoice not good enough send it back for correction.

9.3 If invoice OK then submit claim on account and pay monies when received within 14 days.

9.4 If expert claim reduced on appeal then claim money back but do not expect to receive speedily.

Thursday, 19 December 2013

Legal Aid Update: Experts Part 1

Kindly written & supplied by Jerry Bull (Managing Director of Atkins Hope, Solicitors in Croydon) & Samantha Little (Partner & Head of the Children Law Team at Russell-Cooke in Kingston) from their talk to the ALC Conference.


EXPERTS

See relevant guidance

Guidance on remuneration of expert witnesses


Guidance on risk assessments


1. Rules for the rates for experts to be applied to all cases

1.1. There are now two funding orders affecting experts’ fees.

1.1.1. Funding Order (The Community Legal Service (Funding)(Amendment No 2) Order 2011 affecting certificates dated after from 3.10.11 until 1.4.13. The rates set out in the funding order cannot be exceeded without prior authority.

1.1.2. Civil Legal Aid (Remuneration) Regulations 2013 No 422 for certificates dated after 1.4.13. Again, the rates set out in the funding order cannot be exceeded without prior authority. Some of the rates in the 2013 order have changed the rates set out in the 2011 order so you need to consult the correct list depending on the date of your certificate.

1.2. There are still different rates for some experts in London and out of London although for many of the most commonly used experts, differences were dispensed with for all certificates issued after 1.4.13.

1.2.1. Where there remains a difference, generally experts inside London get paid 50% less than outside London.

1.2.2. This is defined by the registered office address of the expert. It is nothing to do with where the court hearing is taking place or where the solicitor’s office is.

1.2.3. There may still be considerable dispute over whether any particular address is a registered office or not. It is important that all correspondence from the expert has the same address or else it can cause difficulties. If the expert has more than one office LAA will deem the one closest to the client or solicitor as being the one to determine the rate.

1.2.4. If an expert has a PO Box address outside London or uses their home address as their registered office but it is apparent that they are based in London, LAA will conclude that they have more than one office and apply the test above.

1.2.5 So far we have not heard that LAA is seeking to challenge the use of an expert who is out of London rather than in London. However you would be wise to keep a note explaining why you chose your particular expert.

1.3. Make sure the expert is aware of the rate relevant to them and seek their confirmation in writing to the rate.

1.4. ISWs will only be paid at the rate from time to time routinely paid for such services by CAFCASS (currently £33 per hour in London; £30 per hour outside London).

1.4.1. ISWs cannot charge travel at £40 per hour. LAA state in their internal guidance that a figure of 2/3 of their normal hourly rate should allowed for travel. However, Cafcass pays Guardians the same rate for travel as for other work so we would suggest that this is certainly open to challenge if fee reduced because of this.

1.5. Experts can only charge up to £40 per hour for travel and 45 pence per mile for travel. LAA have stated that if claiming at that level means that they are claiming at more than 2/3 of their normal hourly rate then will only allow that lower figure. Again this is from their internal guidance so is still open to challenge.

1.6. Experts cannot charge for the following:

1.6.1. Cancellation fee except where notice of cancellation given less than 72 hours before appointment or hearing
1.6.2. Fee for office space or providing a consultation room. However, the hire of a room for a videolink to give evidence at court will be allowable.
1.6.3. Fee for administrative services eg typing
1.6.4. Fee for courier services
1.6.5. Subsistence

Other costs that cannot be covered in expert’s instructions:-

1.6.6 LAA will not pay any costs or expenses of or relating to the residential assessment of a child, this includes a viability assessment to see if a residential assessment is possible or advised.

1.6.7 LAA will not pay any costs or expenses of or relating to treatment, therapy, training or other interventions of an educative or rehabilitative nature.

1.6.8 LAA will not pay any costs and expenses of independent social work provided outside England and Wales;

1.6.9 LAA will not pay any costs and expenses in relation to contact activities including fees, charges and costs of contact centres and any reports or other assessments of contact between children and adults. However, please note that this exclusion does not apply to observation of contact which forms part of a psychological or parenting assessment.

1.7 These fees will be firmly applied.

1.8 Prior authority will be needed unless fees accord with this list or else your firm will be at risk.

1.9 The LAA has made it clear it no longer wants prior authority applications for experts who are within the rates unless the total number of hours is unusually high. Guidance as to what that means for some experts has now been provided (see reference to the guidance document above). It is unclear as to what happens if there are more than 2 parties. In the absence of clear guidance from LAA, seek prior authority unless the number of hours comes within the guidelines for fewer parties below.


Expert Type One party assessed Two parties assessed

Adult/Child Psychologist 20 30
Adult/Child Psychiatrist 15 25
ISW 30 40
Paediatrician 15 25
Radiologist 10

1.10 Note that if you seek an addendum report which leads to the LAA recommended number of hours being exceeded then you should seek prior authority as it is treated as one report fro LAA assessment purposes.

1.11 If an expert or expense is not listed you need to apply for prior authority. Most common ones not on the list are:

• Translators
• Family therapists/play therapists who are carrying out assessments

Although hair strand tests are not listed on the list of codified rates, the LAA has issued guidance to indicate when it does not need an application for prior authority. This applies where the order specifies the tests to be carried out in accordance with the LAA guidance (again, see the reference above for this guidance)

1.12 In considering whether to approve rates in excess of the codified list, the LAA will do so if reasonable to do so due to exceptional circumstances. As yet the only criteria for “exceptional” are
• The complexity of the material is such that an expert with a high level of seniority is required, or

• The material is of such a specialised and unusual nature that only very few experts are available to provide the necessary evidence

The LAA will not increase the ISW rate but it may be possible for an ISW to be classed as Risk Assessor and so claim at the Risk assessment rate. (see below for more detail)

1.13 For experts not on the list, application for PA is required and the LAA will consider when deciding on their rate the following factors

• the rates in the code

• The LAA may require a number of quotes for provision of the relevant service to be submitted to the LAA. If not, you will need to provide reasons why not.

• Where estimates are required, the LAA want two others in addition to the one you seek PA for

1.14 The LAA say they will not refuse applications for PA before a court has considered the application for an expert or has made an order but it is questionable whether there will be enough time to apply, let alone whether it is going to be worth applying before the court hearing in most cases.

1.15 Applications for PA are dealt with by a dedicated team at the Cardiff office.

1.16 Use APP8A if several parties needing prior authority for the same expert. Agree which solicitor will claim the prior authority for all. For this to work the solicitor making the one application will need all the certificate details for each party. . It is helpful to take the APP 8A to court and complete as far as you can the LAA details on the form. Using this method will not enable all parties’ certificates to have their costs limit increased. If that is necessary then each party will need to apply for that individually.

1.17 A court direction will be needed to enable you to instruct the expert but will not be binding on the LAA. In our experience the recent guidelines as to the wording for the order in the case of Re DS [2012] EWHC 1442 has been completely ignored by LAA and it will down to you to justify the reason for the higher than normal expense.

1.18 There is no right of appeal against a refusal of prior authority and you will have to take the matter back to court urgently if it means that a “necessary” way forward can no longer take place.

1.19 Payments on Account will only be paid at the hourly rate on the list unless prior authority obtained. You will need to send a copy of the prior authority with the application for payment on account.

1.20 LAA will look behind court assessed bills so we can no longer rely on the court assessment to guarantee payment. If the case is one before 3.10.11 then there is no formal hourly rate limit currently in force but LAA will look at the rates as a guideline. In practice we find they can be very difficult about this as they seem to apply the new rates even though not compulsory

1.21 There are ongoing problems in getting LAA not to reduce at final assessment and then having to appeal in our own time. If the expert’s fee is reduced, contact the expert to ask for the money back or any submissions should they wish you to appeal. Do appeal as the LAA’s data suggests that appeals are often successful.

1.22 The Law Society has produced pro forma letters of instruction which are very helpful and should be used (including terms and conditions – see below).



See also my draft letter of instruction here

Wednesday, 18 December 2013

Legal Aid Update: Miscellaneous Part 3

Kindly written & supplied by Jerry Bull (Managing Director of Atkins Hope, Solicitors in Croydon) & Samantha Little (Partner & Head of the Children Law Team at Russell-Cooke in Kingston) from their talk to the ALC Conference.

12.10 Advocates meeting

12.10.1 Only possible in public law – not private law.

12.10.2 Ensure they are directed each time to avoid any problems with LAA who indicate they only expect 2 per case. However, they have indicated that they will not seek to go behind court directions for more than two advocates meetings.

12.10.3 Can be claimed if taking place on same day as hearing but can not double claim time – in other words you either claim the time as being on the advocates meeting or as being on the hearing.

12.10.4 Preparation for the advocates meeting will be included in your advocacy fee and should be recorded.

12.10.5 Does not matter whether it takes place face to face or by telephone. There is even less sense in attending such meetings in person.

12.10.6 If an advocates meeting is directed but all advocates manage to “resolve all relevant matters without the need for such a meeting” (presumably by email or series of telephone calls) then can still claim half the relevant fee for the advocates meeting. This will need a carefully recorded note to prove it to LAA as it will be unusual.

12.10.7 LAA will only need the court orders directing the advocates meetings with the Claim if more than two such meetings. If they seek to reject your claim because no orders supplied when two or less then use the claim fix-it email to challenge.

12.11 Taking instructions from client at court

Our own view is as follows:-

• We can see no reason why you can not arrange to meet your client either early at court or stay behind at court afterwards and claim that time as part of the main fixed fee rather than the advocacy fee. There seems to be no requirement to see the client in your office to take instructions. However, make sure that any attendance note of the taking of these instructions is entirely separate to your attendance note for the hearing.

• If you are taking instructions from client at court in the normal run of the hearing then this would form part of the advocacy fee.

• Comforting client at end of hearing does not count towards your time for the advocacy fee!

12.12 Maximum Fee principle

• This has now gone under FAS.

• This has the significant advantage that we can now claim for briefing counsel at the FPC and for correspondence etc with counsel. Such work will form part of your main fixed fee.

• As the LAA is insisting on counsel having briefs before they can get paid this is helpful to us.


Tuesday, 17 December 2013

Legal Aid Update: Miscellaneous Part 2

Kindly written & supplied by Jerry Bull (Managing Director of Atkins Hope, Solicitors in Croydon) & Samantha Little (Partner & Head of the Children Law Team at Russell-Cooke in Kingston) from their talk to the ALC Conference.

12.5 Time Recording Is Still Important

12.5.1 It is vital to keep recording the full amount of time you spend under the FAS as otherwise you will give LAA ammunition to reduce the fees even further if they can provide evidence that we are making a “profit” on the scheme on a consistent basis.

12.5.2 Our own experience is that when preparation is properly recorded our time recorded figure and the amount of FAS is very similar and possibly even lower than what we would have got if the further uplift we could have claimed would have been allowed.

12.5.3 It seems to be more difficult to make the FAS work in your favour when acting for child. It is very difficult to get bolt-ons for a child.

12.6 FAS attendance forms do not need to be sealed but do need to be signed by the Judge/Clerk and any bolt-ons stamped or initialled.

12.7 Two hearings in one day?

12.7.1 We do not have to apportion times so very good use of FAS.

12.7.2 Try to get your cases listed on same day and only have one advocate at court if possible.

12.7.3 Can claim the travel bolt-on for each hearing but will have to apportion any disbursement claims

12.8 Final/Interim Hearing

12.8.1 A final hearing is any hearing which is listed by the court for the purposes of making a final order.

12.8.2 This can be for the whole of the issues in the case or all the issues in a particular aspect. This means that Fact Finding hearings are treated as final hearings as the Court is finally resolving all the factual issues.

12.8.3 IMPORTANT: a case listed for directions only cannot be claimed as final hearing even if the case concludes.

12.8.4 IMPORTANT: a case concluding at an IRH is a final hearing.

12.8.5 IMPORTANT: a case listed for disposal as a consent order or which is otherwise not expected to be contested or effective is not a final hearing

12.8.6 In care proceedings, the final hearing will be the one at which the court determines whether or not a Section 31 Order is made. BUT it still has to conform to the rules above

12.8.7 An EPO and most secure accommodation applications will only have one hearing and this will be a final hearing.

12.8.8 Cases where LA simply withdraws its application will not be a final hearing but if the court determines at a contested hearing that there was a procedural irregularity meaning the proceedings are dismissed then it is arguable whether it is a final hearing or not. If the case was listed as a contested hearing and this issue was known about when listed then we would argue it is a final hearing.

12.8.9 In private law proceedings you have the added complication of the restriction of your legal aid certificate which prevents you from claiming for a contested final hearing unless you extend the scope to cover “legal representation”. Therefore, our current view is that if your certificate is only “Family Help Higher” or is in any other way limited so as not to cover you for a contested final hearing you will not be able to claim a final hearing fee.

12.8.10 You cannot claim an interim hearing fee for a hearing listed as a final hearing in private law. If you do attend it will be entirely for free.

12.8.11 A fact finding hearing in a private law case is treated as a final hearing but you do not need to get your certificate extended to Legal Representation unless and until the case is finally listed for a contested final hearing other than a fact finding..

12.8.12 In DV cases, if the return date is a contested hearing then we would argue this is a final hearing and the certificate for DV covers final hearings.

12.8.13 If the court orders a review after a final order (realistically only in private law) then that further hearing is not a final hearing even if the court varies the final order already made.

12.8.14 Normally only one FAS form is needed for a final hearing with the total number of days inserted. However we would suggest getting the FAS form signed off by the judge at the end of a Fact Finding hearing as too much risk of forgetting at end especially if different advocate. There is also the risk that your client ceases to give instructions or the case is transferred and you do not get to attend the remaining part of final hearing.

12.8.15 Attending for Handing down of Judgment: attendance for this is not treated as advocacy and a FAS fee is not claimable. If a solicitor attends it can be claimed as part of the main fixed fee.

12.8.16 However, if anything has to be decided after the handing down of judgement then it will be a hearing and will be claimable as part of the main hearing. For example; deciding on disclosure of documents following judgement.

12.8.17 It is presumed that the same advocate will attend the fact finding and the disposal hearing (or indeed for judgment as above). However if they are different then it is still one final hearing and all the usual bolt-ons will apply across the board but only one bundle bolt-on can be claimed. The advocates may have to fight for this between themselves. Indeed the bundle bolt-on could increase by the disposal hearing and the higher one can be claimed.

12.8.18 We advise that the second advocate should make it clear on the FAS form that this is part of a larger hearing, eg by writing “Days 5-9 of final hearing” on the FAS form and getting that initialled.

12.8.19 It is also good practice for the final order to indicate the days that have been taken overall in reaching the decision including any days directed for written submissions as this will help in any claim. For example the order may state “Upon the Court sitting on 3, 4, 5, 6, 7, February and on 9, 10, 11, and 12 October……”. It will then be clear that this was a 9 day final hearing.

12.8.20 If the Court directs a review hearing after the final hearing this is not part of the final hearing and should be claimed as an interim hearing whatever happens at that hearing. But check that your certificate still covers it.

12.8.21 NB enforcement proceedings can result in 2 final hearings. Therefore if you obtain a contact order in the main proceedings but then have your certificate amended to enforce that order the final determination of those enforcement proceedings will also be a final hearing.

12.9 When FAS form not needed

12.9.1 Advocates meetings (although a detailed attendance note will be needed to justify the work).

12.9.2 Telephone call/videoconference hearings. Again detailed attendance note needed and reasons for claiming bolt-ons very clearly specified albeit that these may be more difficult to claim in such a situation.

12.9.3 Any hearing when minimum unit being claimed with no bolt-ons. However, counsel will still need a brief.

12.9.4 Cancelled hearings where a one hour unit hearing can be claimed by external advocate if undertaken at least 30 minutes preparation.


Monday, 16 December 2013

Legal Aid Update: Miscellaneous

Kindly written & supplied by Jerry Bull (Managing Director of Atkins Hope, Solicitors in Croydon) & Samantha Little (Partner & Head of the Children Law Team at Russell-Cooke in Kingston) from their talk to the ALC Conference.

12. Miscellaneous Points Which Have Been Established

12.1. Only one FAS form needed per hearing

12.1.1. One form only needed no matter how many clients you act for. Choose one Legal Aid Certificate to be included. Remember to include all Legal Aid certificate numbers on final claim for costs on case.

12.1.2. Claim your payment on account based on actual fees claimed not on a time recorded basis (albeit there may not be much difference between the two).

12.1.3. This means that you must keep a record of the actual fee incurred, either manually or on computer if possible.

12.1.4. Court does not keep a copy of FAS form.

12.1.5. A good precaution to scan in your FAS forms in case you lose the original. The LAA will not accept a scanned form but it should be easier to get the form signed off again by the court.

12.2 Hearing lasting ten days or more?

12.2.1 Hearings of ten days or more do not justify a change to a claim on hourly rates whether counsel or solicitor.

12.2.2 It is probable that a case involving such a hearing would be a VHCC and so become exempt but, of itself, there is no exemption as result of the old rule.


12.3 Post Hearing Discussions

12.3.1 These are not claimable under the FAS or as part of your preparation for the main fixed fee unless the court agrees to allow you that further time to finalise the order and signs off your form accordingly.

12.3.2 It may not make much difference depending where you are on your time at court in that it may be still some time before you could reach the next fee stage and, if final hearing, there is no end time as you simply get a daily rate.

12.3.3 However, it is still your time which you could be spending on other matters and so you are losing out in that way.

12.4 Preparation for Hearing

12.4.1 This is part of the fixed fee of advocacy and so MUST NOT be claimed as part of your main fixed fee except for cancelled hearings (see below).

12.4.2 Still important to record your preparation on your attendance note and time record it.

12.4.3 This makes it more difficult to escape main fixed fee when acting for children.

12.4.4 Remember to be vigilant to capture all the time you spend on your perusal of documents during the case – the LAA will allow a minimum of 2 minutes for the most straightforward A4 sheet.

12.4.5 Preparing skeleton arguments and written submissions will be part of FAS fee. It may be possible for the judge to allow extra time on FAS for an interim hearing if he is seeking to reduce his time at court at your expense by directing written submissions. In a final hearing you can only claim a daily rate so extra time may be of no help to you. Some courts may choose to list a hearing day with the expectation that you prepare your submissions. If that is listed, you should be able claim it as a hearing day.

12.4.6 Position statements are part of preparation for advocacy if prepared by the advocate (whether solicitor or counsel). If prepared by solicitor, and counsel attends then clearly not part of advocacy fee and the solicitor should claim it as part of the main fixed fee.

12.4.7 If Position Statement is prepared by the solicitor with conduct but the hearing is conducted by another solicitor we believe it is not part of Advocacy fee. Again, we hope to clarification of this for the conference

12.4.8 If counsel prepares a position statement then there is no means of claiming for this other than as part of FAS so no benefit in counsel doing it. Will solicitors be put under more pressure to produce them or will counsel’s desire not to be shouted at by Judge mean they will still do it?

12.4.9 Cancelled hearings:

12.4.9.1 If external advocate, that person can claim for a one hour hearing without bolt-ons (no FAS form) if they have done more than 30 mins preparation and hearing cancelled at any time after receiving papers.

12.4.9.2 If internal advocate, that person can claim for preparation as part of the main fixed fee for any preparation actually undertaken for that cancelled hearing.

Friday, 13 December 2013

Legal Aid Update: FAS - Claims For Payment

Kindly written & supplied by Jerry Bull (Managing Director of Atkins Hope, Solicitors in Croydon) & Samantha Little (Partner & Head of the Children Law Team at Russell-Cooke in Kingston) from their talk to the ALC Conference.


11. Claims for Payment

11.1. For interim hearings, based on units of 2.5 hours once you have exceeded one hour. They just keep being added up in units of 2.5 hours no matter over how many days the hearing runs.

11.2. If you do run over one day then you will need to produce your notes of hearing to show when you attended court each day

11.3. If you exceed one hour you do not claim that separately it just gets absorbed into the first 2.5 hour unit

11.4. For final hearings it is a daily rate. Reading days do NOT count as a day of final hearing so you may wish to attend for housekeeping issues. NB in the extremely unlikely event that a final hearing runs until after midnight on day 1 then a second day can be claimed.

11.5. Remember that any time at court on a final hearing counts as a day for claiming purposes.

11.6. On the CLAIM1A the “total time” refers to the time between your start time and your end time on the FAS form and not total time engaged in hearing, preparation and travel.

11.7. Payments on Account claimed in same way as before for solicitors ie 75% paid twice a year. This is the one area where there is still difference with counsel who can claim for each hearing as it arises. FAS form not needed for payment on account.

11.8. FAS forms essential for final claim. No form, no payment (except when a one hour claim is being made with no bolt on).

11.9. Need to include the court orders directing attendance at court and advocates meetings.

11.10. Remember the £20 limit (inclusive of VAT) for disbursements – you will need a receipt for anything over that figure. If it is for mileage or smaller disbursements we have found LAA will need to see your attendance note setting out the claim or a copy of your accounts ledger showing it has been paid.


Thursday, 12 December 2013

Legal Aid Update: FAS Bolt Ons

Kindly written & supplied by Jerry Bull (Managing Director of Atkins Hope, Solicitors in Croydon) & Samantha Little (Partner & Head of the Children Law Team at Russell-Cooke in Kingston) from their talk to the ALC Conference.


10. Bolt-Ons

Care cases
There are 3 types each attracting 25% in care cases:-

• allegation of significant harm against your client,
• expert cross examination and
• client lack of understanding.

• For each one you add another 25% so that if all can be claimed, you can increase your fixed fee by 75%.

Private law cases
In private law cases there are only 2 bolt-ons claimable – client’s lack of understanding does not apply. Also the expert one only attracts 20%.

No bolt-ons are available in domestic abuse.

In ancillary relief the only bolt-on is for an early resolution.

In every case you can claim the bolt-on for the court bundle.

Any bolt-on claimed (apart from travel) must be initialled or sealed by court for it to be claimable. If the LAA return your claim asking for something different send it back with a complaint.

10.1 Significant harm to a child

10.1.1 Not significant harm as defined in CA 1989.

10.1.2 Has to be death, extensive physical injury, ill treatment (likely to endanger life eg suffocation or starvation), fabricated illness or sexual abuse. However, the harm has to be suffered by a child so DV between parents not going to count unless child suffered direct harm as a result – eg man hits child held by mother.

10.1.3 It has to be made by LA or adopted by LA. Therefore, allegations made by one parent against the other but not sought as part of LA case will not count.

10.1.4 Neglect does not fit this category.

10.1.5 Only available if your client is alleged to be perpetrator.

10.1.6 Rarely available if acting for child.

10.1.7 Has to be a live issue in the case therefore cannot use it on interim hearings after fact finding hearing if the facts were not found or the LA no longer pursue the allegations. At present, our view is that if your client had findings made against them in a fact finding hearing then significant harm would still be a live issue for the rest of the case.

10.1.8 Does not have to be a child within the proceedings but does have to be a live issue to be determined. Therefore, if LA rely on findings made in a previous case that your client assaulted another child that may well count. We will aim to clarify at the Conference.

10.2 Expert cross examination

10.2.1 Only available at hearing when expert actually cross examined and substantially challenged.

10.2.2 Or prepared for cross examination but either expert stood down at last minute (less than 72 hrs) or attended and not actually give evidence.

10.2.3 You do not have to be the person needing to challenge – available to all advocates at that hearing.

10.2.4 Guardian and any employed SW or other employee of LA does not count as an “expert”.

10.2.5 An ISW used by LA because it does not have resources to do work in house would not be included. But an ISW used by LA because of need for “independence” would be included even if LA only one paying.

10.2.6 The fact that the President wishes all SWs and Guardians to be treated as experts makes no difference to LAA.

10.2.7 Only applies per hearing and not per expert so will make no difference if challenging one or four experts.

10.3 Client lack of understanding

10.3.1 Not available in private law.

10.3.2 Client has to have difficulty giving instructions due to mental disorder or significant impairment of intelligence or social functioning.

10.3.3 Must be an expert report confirming diagnosis. Such report does not have to have been prepared in the proceedings but has to be available to the court for the hearing for which bolt-on being claimed.

10.3.4 Unclear how far in the past a report can be used, e.g. a client with learning difficulties will not improve so will a report from 20 years ago suffice? Not clear. Our view is that if a report is still relied on in the proceedings it will suffice.

10.3.5 Cannot use a report obtained later in proceedings to claim an uplift for an earlier hearing.

10.3.6 Official Solicitor acting should mean bolt-on automatically applies.

10.3.7 Need for an interpreter not sufficient (includes deaf signing).

10.3.8 Deafness and blindness alone not considered as being enough to constitute a significant impairment for these purposes.


10.4 Court bundle

10.4.1 Fixed amount to be added to your claim.

10.4.2 2 amounts available for interim hearings – Bundle between 350 and 700 pages (£59.40 and Bundle over 700 pages (£89.10). in public law, you can only claim on interim hearing which is a CMH or an IRH or otherwise a hearing that is listed for the hearing of contested evidence

10.4.3 3 amounts available for final hearings with a further amount for a bundle over 1400 pages. But only per hearing and not per day of final hearing. These amounts are higher than for interim hearings so do not miss out by claiming the lower interim hearing figures. The final hearing bundle payment can be claimed if the IRH becomes the final hearing.

10.4.4 At this stage it is not necessary to produce any evidence for the bundle but we suspect that this will be introduced in due course so you may wish to scan in the index with your FAS form so that you have easy access later on.

10.4.5 Remember to include Position statements or other documents filed at court in your calculation if you are close to a particular limit

10.4.6 Only 2 claims for interim hearings in care cases and only one in private law.

10.4.7 Must get bundle box initialled or sealed at every hearing appropriate so as to decide later which one(s) to claim.

10.4.8 May cause friction with external advocates and counsel. Who claims the bundle bolt-on? If you do not want counsel to claim, need to negotiate with clerk.

10.4.9 Also on a change of solicitor, the bundle fee is claimable by whoever requests it first so ensure this is clear on handover.

10.4.10 The bundle is what is substantially considered by the court. It does not include:
• Pages in counsel brief
• Information supplied to counsel but not in bundle
• Further bundles filed in case further info may be needed
• If core bundle prepared then presumably only those pages in that core bundle will count
• If do not send counsel all the papers then presumably only the papers that counsel actually has will count towards bundle payment

10.5 Exceptional Travel

10.5.1. Can only claim as a Bolt-on if more than 25 miles each way from your office by the “most direct route” (not in a straight line).

10.5.2. Bolt-on is a fixed amount added to claim. But only £32.04 so do not get too excited (it is not that exceptional).

10.5.3. It is paid for each day of hearing and not per hearing

10.5.4. Have to consider whether a more local advocate should be instructed.

10.5.5. Sort out which courts are within that area for your office.

10.5.6. Agree the mileage from your office to each court.

10.5.7. Suggest using AA or Google maps to get a definitive mileage and most direct route. May be worth keeping a printout in a central record case of challenge from LAA.

10.5.8. You cannot choose to go by a longer route just because it happens to be quicker for you and then use that to justify exceptional travel. The only exception is if there is something unusual (e.g. an accident or roadworks) which means that the most direct route is not available that particular day.

10.5.9. Anticipate that LAA will look closely at all such claims and do their own research as to whether a particular court is within 25 miles of your office. They will not worry if the most direct route is the slowest. Be prepared to argue but do your research first and do not rely on old habits.

10.5.10. You have to give a reason for attending with exceptional travel on the CLAIM1A. So far we have been successful with simply saying “representation of child” when acting for a child or “continuity of representation” when acting for a parent.

10.5.11. If claiming mileage, then you will have to justify why you went by car and not public transport: eg quicker in time, distance of court from train station or simply volume of papers to carry

10.6 Early resolution

10.6.1 Only available in finance cases.

10.6.2 Only if cases settles at 1st appointment or FDR and is recorded in a consent order or Heads of Agreement.

10.6.3 Finances must be fully concluded to be claimable.

10.6.4 Advocate must have materially assisted (i.e. not claimable if simply attending to rubber stamp an order already agreed).

10.6.5 No further level of service (i.e. not break down) within 6 months.

10.6.6 Reconciliation does not count.

Wednesday, 11 December 2013

Legal Aid Update Part 2: FAS Scheme - Start Times, Finish Times & Travel

Kindly written & supplied by Jerry Bull (Managing Director of Atkins Hope, Solicitors in Croydon) & Samantha Little (Partner & Head of the Children Law Team at Russell-Cooke in Kingston) from their talk to the ALC Conference.


7. Start Times

7.1. Start time on FAS form is from when you arrive at court or when you are directed to arrive at court (or the actual hearing time if no earlier time specified) whichever is the later.

7.2. LAA will ask for the court order listing the case to be supplied with the claim so make sure you have not started your time too early.

7.3. Important to encourage courts to direct that legal representatives arrive at least 30 minutes, if not one hour, before hearing to allow for discussions.

7.4. If no such direction made then only arrive at time of hearing to encourage courts to make directions in future to show how much their court lists depend on us being able to negotiate.

7.5. If you arrive early and engage in negotiations you will not get paid for it and indeed could reduce the amount you are able to claim one hour, being the lowest fee.

7.6. For final hearing the start and finish time is irrelevant and does not need to be recorded on the form. However, if you think there may be some doubt about whether it is a final hearing or you can claim for a final hearing at all in a private law case, it may still be worth recording the time on the form in case of dispute with LAA over whether it really was a final hearing or not and you have to revert to claiming as an interim hearing.

7.7. If attending for an ex-parte application, the start time will be when the papers are issued so the waiting around to get papers issued does not form part of FAS. If no papers actually issued before going before Judge then it is presumed that start time will be when the hearing actually starts before the Judge. If papers issued but then not possible to get hearing heard that day the end time will be when advocates informed of this and the case will start again at the time the advocate told to attend the next day.

7.8. If hearing by video or tele-conference without attendance at court, the hearing time will start from the time that the call/videoconference is first attempted and not when hearing actually listed.

7.9. The start time does not need to be stamped or initialled.

8. Finish Time

8.1. When the case actually concludes in court before the Judge or at such a future time as the court is prepared to allow if it has asked you to finalise the order before leaving court. It is not the time when you leave the court building.

8.2. For interim hearings you simply put down the end time no matter which day but remember to complete the number of days section as well if goes over one day. This can have the weird effect that you can appear to finish before you started if the hearing commenced at 2pm one day and finished at noon the next day – doing legal aid really is like going back in time!

8.3. For the avoidance of doubt this means that you should still have only one FAS form per hearing and not per day of hearing.

8.4. You should also be aware that unless the court directs you to be there early on the subsequent days of interim hearings you will only get paid for the time the hearing is listed. Therefore try and get the court to direct you to be there early on subsequent days. This can be recorded on the order that is drafted from the interim hearing setting out the times for the attendance on days 2 and subsequent days. This is particularly important if the hearing is listed as a final hearing but becomes an interim one.

8.5. Not necessary to put down a start and end time if final hearing as get paid by the day (but see 7.6 above).

8.6. If court not prepared to allow more time yet is seeking to ask you to finalise the order then you will need to insist on coming back before the court to have the order approved or else none of that time will be paid for.

8.7. All advocates should have the same end time on their forms, save in exceptional circumstances.

8.8. The end time does not need to be stamped or initialled

8.9. Finalising the order by correspondence after the hearing is all part of FAS and so you are best to try and resolve it at court within time allowed by the court.

9. Travel to Court

9.1. Included in your FAS fee (unless bolt-on applies – see following post).

9.2. Travel costs can still be claimed as a disbursement (remember £20 inc VAT limit on needing a receipt).

9.3. Mileage can be claimed as a disbursement and need to attach attendance note to any claim whether final or on account.

9.4. Client’s travel can be claimed but must have receipt and record the reason why it was paid




Tuesday, 10 December 2013

Legal Aid Update Part 1: Family Advocacy Scheme

Another useful subject which is covered every year at the Association of Lawyers for Children conference (next year in Bristol on 13th -15th November 2014) is an update on Public Funding. I have the kind permission of the ALC & Jerry Bull (Managing Director of Atkins Hope, Solicitors in Croydon) & Samantha Little (Partner & Head of the Children Law Team at Russell-Cooke in Kingston) to publish their work in sections on the blog so a series of blog posts will follow.

Now listen very careful for I shall say this only once. The usual disclaimer applies (see this page on the main Family Law Week site) - the text is not guaranteed to be correct or up-to-date, may not be a definitive or complete statement of the law etc.

The first few posts will cover aspects of the Family Advocacy Scheme.

What cases are covered and what are exempt

1. Public Law

1.1. All applications for care or supervision orders.

1.2. This will not include whether court makes a care order or supervision order within private law proceedings of its own motion but where there is no actual application by a local authority for this. This is likely to become more common with the withdrawal of legal aid for most people.

1.3. Covers all levels of court to High Court.

1.4. Includes interlocutory appeals but not final appeals.

1.5. Includes all related proceedings, i.e. all proceedings heard together with public law proceedings or in which an order is being sought as an alternative to an order in such proceedings (e.g. SGO and/or Placement Orders). It will also include all private law proceedings which have become care proceedings or if heard together with them.

1.6. It is less clear about what happens if private law proceedings are not heard together but heard on the same day but immediately following on from care hearing. Our view is that these are separate proceedings and should be claimed as two cases but you may have an argument with LAA as to precisely how the hearings have been conducted.

2. Other Public Law Cases

This includes:-

2.1. Emergency Protection Orders.

2.2. Secure Accommodation Orders.

2.3. Discharge Care/Supervision Order.

2.4. Contact to Child in Care.
2.5. Extend/Vary Supervision Order.

2.6. Child Assessment Order.

2.7. Recovery of Abducted Child Order.

2.8. Adoption Proceedings.

2.9. Free standing Placement Order and Revocation of Placement Order.

3. Domestic Abuse

3.1. All usual family injunctions including injunctive relief in care proceedings under The Protection from Harassment Act 1997. Applications for a Forced Marriage Protection Order are excluded from the scheme although included in this definition for the purposes of the funding code.

3.2. An Avoidance of Disposition Order is not included neither are orders for maintenance or financial issues following an Occupation Order. Both should come within ancillary relief.

3.3. If, as is quite common, there is an overlap between domestic abuse and private law children you are entitled to choose which fee is going to be most profitable for you.

4. Private Law Children

This includes all applications for:-

4.1. Residence, Contact, Prohibited Steps.

4.2. Parental Responsibility.

4.3. Special Guardianship (freestanding).

4.4. Does not include any applications for maintenance or other Financial Orders.

5. Ancillary Relief and All Other Family Work

This covers:-

5.1. All ancillary relief proceedings.

5.2. All applications for a financial relief whether within divorce or Schedule 1 Children Act.

5.3. Other miscellaneous applications not falling in any other category above.

6. Main Exemptions

6.1. The following list below sets out the most usual exemptions which means that you do not claim under the FAS but continue to claim on hourly rates plus enhancements when justified. This is not an exhaustive list but simply sets out the ones that we usually deal with.

6.1.1. Acting for child in private law proceedings, adoption, and special guardianship (freestanding).

6.1.2. All VHCC cases although LAA will probably wish to agree the FAS scheme within your contract.(see below for more detail on VHCC)

6.1.3. Any party in international child abduction proceedings.

6.1.4. Proceedings under the inherent jurisdiction of the High Court in relation to children.

6.1.5. An appeal against a final order.

6.1.6. Any proceedings at the Court of Appeal or Supreme Court.

6.2. It is interesting to note that where solicitors undertake work we have to claim at the hourly rates plus enhancements when justified as set out in the payment annex but counsel can claim such fees “as are deemed reasonable on assessment” albeit that the assessment of what is reasonable may take in to account the solicitor’s rates. This raises the real possibility of counsel being paid more for the same work than a solicitor in these circumstances.

6.3. If a single hearing includes “significant work in a matter falls within the scheme and is also excluded from the scheme then the whole hearing will be treated as excluded from the FAS”. If you are in any doubt, get a FAS from signed off just in case


Wednesday, 4 December 2013

Report of the Private Law Working Group

John Vater QC gave an extremely entertaining presentation on private law children's cases at the ALC this year and all the more so for being first on Saturday morning when some of us might have been feeling a bit delicate and certainly did not have enough sleep. Also the more impressive because it has not been a busy year in private law perhaps because of the withdrawal of public funding.

In part of his talk he reviewed the Report of the Private Law Working Group, chaired by Cobb J. The first report was published on 12.11.13.

Some salient points:

* No time limit for resolution of cases (cf 26 weeks in public law & no doubt realistic in light of the numbers of LIPs.

* Courts should not list for review unless both necessary and in the interests of the child

* Use s 11H Children Act 1989 or make a Family Assistance order under s 16 to continue professional involvement if necessary

Next year's conference will be in Bristol from Thursday 13th to Saturday 15th November 2014. Sadly I already know I will not be able to be there but it is always worth going - I really did not need the points this year but went anyway because it is such a great opportunity to meet, talk & learn & laugh!

Another great event put on by the ALC and the last one of its kind is the Hershman / Levy Memorial Lecture on 26th June 2014 in Gray's Inn

Tuesday, 3 December 2013

The proper approach in welfare evaluations: balance sheet

Recent case law following Re B has provided guidance on how the courts should analyse and explain their reasoning and the factors which must be weighed in the balance.

McFarlane LJ held at para 50 in Re G that “The linear approach, in my view, is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare."

A court cannot apply the yardstick of proportionality in its consideration of what is necessary without having evidence about the options to which it can apply a welfare evaluation. As McFarlane LJ said in Re G at [54]:

What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.

In Re B-S (Children [2013] EWCA Civ 1146 at [36], the court suggested that it may be helpful to those who have to perform this task (and the associated task where placement applications are made under the Adoption and Children Act 2002 where the separate and distinct welfare checklist in s 1(4) of that Act is engaged) to adopt the balance sheet approach first used by Thorpe LJ in medical cases (see, for example: Re A (Male Sterilisation) [2000] 1FLR 546 at 560). Setting out the positives and negatives or if you prefer, the benefits and detriments of each placement option by reference to the welfare checklist factors is an illuminating and essential intellectual and forensic exercise that will highlight the evidential conclusions and their implications and how they are to be weighed in the evaluative balance that is the value judgment of the court. It is to be noted that this exercise is different in substance and form from a mechanical recitation of the welfare checklist with stereotypical commentary that is neither case specific nor helpful.




Monday, 2 December 2013

Proportionality & adoption: Re B

If the threshold criteria are satisfied, the court has to evaluate, per McFarlane LJ in Re G (A Child) [2013] EWCA Civ 965 at [44], "which set of arrangements for the child's future care are to be endorsed by the court's order … by affording paramount consideration to the child's welfare (the welfare evaluation)”

The making of a care order with a view to her adoption represents an interference with the exercise by the children and the parents of their rights to respect for their family life. It is therefore lawful only if, within the meaning of article 8(2) of the Convention, it isnot only in accordance with the law but also "necessary" in a democratic society for the protection of the right of the children to grow up free from harm. In Johansen v Norway (1997) 23 EHRR 33 the European Commission of Human Rights observed, at para 83, that "the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportional to the legitimate aim pursued".

In a number of its judgments the European Court of Human Rights, "the ECtHR", has spelt out the stark effects of the proportionality requirement in its application to a determination that a child should be adopted. In YC v United Kingdom (2012) 55 EHRR 33, it said:

134 The Court reiterates that in cases concerning the placing of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount. In identifying the child's best interests in a particular case, two considerations must be borne in mind: first, it is in the child's best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and secondly, it is in the child's best interests to ensure his development in a safe and secure environment. It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to 'rebuild' the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. However, where the maintenance of family ties would harm the child's health and development, a parent is not entitled under article 8 to insist that such ties be maintained.


Although in that paragraph it did not in terms refer to proportionality, the court had prefaced it with a reference to the need to examine whether the reasons adduced to justify the measures were relevant and sufficient, in other words whether they were proportionate to them.

A parent's consent to the making of an adoption order can be dispensed with only if the child's welfare so requires (section 52(1)(b) of the Adoption and Children Act 2002); there is therefore no point in making a care order with a view to adoption unless there are good grounds for considering that this statutory test will be satisfied.

It is clearly not enough that it would be better for the child to be adopted than to live with his natural family (In re S-B (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678, para 7).

That adoption must be demonstrably required is heavily emphasised in the Supreme Court's judgments in In the matter of B (A Child) [2013] UKSC 33.

Lord Wilson at para 34:

The same thread therefore runs through both domestic law and Convention law, namely that the interests of the child must render it necessary to make an adoption order. The word "requires" in section 52(1)(b) "was plainly chosen as best conveying...the essence of the Strasbourg jurisprudence" (Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, para 125).

Lord Neuberger at para 104:

104. We were not addressed on [Article and cases referred to]. However, they all give added weight to the importance of emphasising the principle that adoption of a child against her parents’ wishes should only be contemplated as a last resort – when all else fails. Although the child’s interests in an adoption case are “paramount” (in the UK legislation and under article 21 of UNCRC), a court should never lose sight of the fact that those interests include being brought up by her natural family, ideally her natural parents, or at least one of them.

Kerr para 130:

Whether or not article 8 has any part to play in the threshold decision, it certainly comes into full flower at the disposal stage. Lady Hale and Lord Wilson have both referred to emphatic statements by ECtHR in such cases as Johansen v Norway (1996) 23 EHRR 33, K and T v Finland (2001) 36 EHRR 18, R and H v United Kingdom (2012) 54 EHRR 2, [2011] 2 FLR 1236 and YC v United Kingdom (2012) 55 EHRR 33 concerning the stringent requirements of the proportionality doctrine where family ties must be broken in order to allow adoption to take place. I agree with Lady Hale's statement (in para 198 of her judgment) that the test for severing the relationship between parent and child is very strict and that the test will be found to be satisfied only in exceptional circumstances and "where nothing else will do". I also agree with what Lord Wilson has said in para 34 of his judgment, that "a high degree of justification" is required before an order can properly be made.


Lord Clarke at para 135:

A care order cannot be made unless it is necessary in the best interests of the child. Nothing less than necessity will do, either under our domestic law or under the European Convention on Human Rights. Only in a case of necessity will an adoption order removing a child from his or her parents be proportionate.

Lady Hale at para 198:

Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do. In many cases, and particularly where the feared harm has not yet materialised and may never do so, it will be necessary to explore and attempt alternative solutions. As was said in Re C and B [2001] 1 FLR 611, at para 34,
"Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.


Friday, 29 November 2013

Re B: Threshold & its Relevance to Welfare Findings

In Re B at paras 186-190 Lady Hale had this to say about threshold and the relevance of the threshold findings to the welfare decision:

186. As to the suggestion made by Ward LJ (at para 54), that article 8 of the European Convention on Human Rights does "inform" the meaning of "significant", I agree that it is only the court's order, and not its finding that the threshold has been crossed, which constitutes an interference with the article 8 right. However, the reason why the threshold is crossed forms part of the court's reasons for making the order, and these must be "relevant and sufficient". It is not sufficient that the child would be better off in another family. That is the reason for the existence of the threshold (which was substituted for the more precise criteria laid down in the Children and Young Persons Act 1969 and the Child Care Act 1980). Furthermore, there is a relationship between this debate and the approach taken to proportionality, discussed in paragraph 197 below, which I believe to be common ground between us. If permanent removal is proportionate if it is the only way of avoiding the identified risk of harm, then it is also important that the threshold of harm is not set at too low a level, for otherwise the reasons for removal will not be sufficient: say, for example, that it is highly likely that a child will turn into an unhealthy couch potato like her parents, and only permanent removal could reliably prevent this, it would nevertheless not be a justifiable interference with family life to permit this.

187. Added to the difficult question of identifying significant harm is the question of identifying the degree of likelihood that such harm will be suffered in the future which is necessary to take the case over the threshold. It was held, albeit strictly obiter, in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 that "likely" does not mean "probable" or "more likely than not". It means, in Lord Nicholls' well-known words, "a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case" (at 585F). That standard has been adopted or approved in numerous later cases, including recently in this court in In re J (Children) (Care Proceedings: Threshold Criteria) [2013] UKSC 9; [2013] 2 WLR 649. It is in this respect, and this respect alone, that Lord Nicholls observed that the threshold is "comparatively low".

188. The reason for adopting a comparatively low threshold of likelihood is clear: some harm is so catastrophic that even a relatively small degree of likelihood should be sufficient to justify the state in intervening to protect the child before it happens, for example from death or serious injury or sexual abuse. But it is clear that Lord Nicholls did not contemplate that a relatively small degree of likelihood would be sufficient in all cases. The corollary of "the more serious the harm, the less likely it has to be" is that "the less serious the harm, the more likely it has to be".

189. Of course, another reason for adopting a test of "real possibility", rather than "more likely than not", is that it is extremely difficult to predict the future and to do so with the sort of accuracy which would enable a court to say that it was more likely than not that a parent would harm a child in the future. Once again, this is a particular problem with emotional or psychological harm, which may take many years to manifest itself. The Act does not set limits upon when the harm may be likely to occur and clearly the court is entitled to look to the medium and longer term as well as to the child's immediate future.

190. However, the longer term the prospect of harm, the greater the degree of uncertainty about whether it will actually happen. The child's resilience or resistance, and the many protective influences at work in the community, whether from the wider family, their friends, their neighbourhoods, the health and social services and, perhaps above all, their schools, mean that it may never happen. The degree of likelihood must be such as to justify compulsory intervention now, for there is always the possibility of compulsory intervention later, should the "real possibility" solidify.

Thursday, 28 November 2013

Family Law Blog Review

Suesspicious Minds


How the author of this blog did not receive the award for family law commentary in 2013 I do not know. It is the blog to read about public law proceedings. I don't quite know how he manages it but it is on occasions laugh out loud funny.

Pink Tape

My co-editor Lucy Reed's blog has now been going for some time but remains interesting and entertaining and all the better for being grounded on her practice as a barrister

Family Lore

John Bolch - the uncrowned king of the family law internet - without whom I would not be blogging - always up to the minute - covering public & private law children & divorce & money, domestic violence. Your one stop shop.

Marilyn Stowe Blog: Where Family Law Meets Family Life

Now with added John Bolch! Marilyn tends to focus on divorce and money but occasionally comments on children matters. Always worth reading.

Researching Reform

Natasha Phillips has been writing her blog since 2008 and is committed to generate debate and reform to improve the family justice system. She is also busy generating the Encyclopaedia of Family Law as a free online resource & has managed to persuade a number of great people to contribute (including me!). I will let you know when it is up & running.

Bloody Relations


My own blog aimed at family members - just been revived - mainly good for comedy at the moment.

Family Blawg
Good for news stories including from the US. A number of firms of solicitors provide content.

Family Lawyers' blogs with useful content - occasional comments on cases & news stories

Pannone Family Law Blog

Kingsley Napley Family Law Blog


Flip


Emma's Family Law Blog


Garden Court Chambers Family Law Blog


Porter Dodson Fertility & Parenting Law


Family Law Matters Scotland

If you know of or write a good one I have missed please add a comment.

Wednesday, 27 November 2013

Working Together

I was reminded by Elizabeth Isaacs QC in her talk to the ALC Conference about the revised Working Together guidance issued earlier in the year and updated in August 2013. The guidance replaces the previous guidance of the same name and the Framework for the Assessment of Children in Need & their Families.

There is a good summary of the guidance on the NSPCC website
from which page you can download the new guidance and there are links to the old documents.

A key change for local authorities is that they are no longer required to carry out separate initial and core assessments but can determine their own assessment methodology for which they should put in place a local protocol.

Local authorities must follow the new statutory guidance unless exceptional reasons apply and the guidance should also be applied by Local Safeguarding Children's Boards & senior managers in organisations who commission & provide services for children & families.

Gone are the five key outcomes for children. Instead local authorities must take action to enable all children to have the best outcomes but this is not defined.

The need for local authorities providing services to children to comply with the Equality Act 2010 is emphasised within the new guidance.

Social work practitioners are enjoined to ensure that they:

* focus on the needs and views of the child;
* review & revise their opinions & decisions in light of any new evidence;
* engage in critical reflection through supervision;
* record their decisions;
* complete assessments within 45 days

Friday, 22 November 2013

The Use of ISWs in care proceedings

I am pleased to be attending the ALC Annual Conference in Manchester and am listening to Dr Julia Brophy speaking about her paper "Neither Fear Nor Favour: The views and practices of senior judges regarding the use and value of independent social work expertise in care proceedings".

The full report can be read here

Key findings included:

* Judges did not consider that they frequently ordered ISW reports

* the main reason for using ISWs was that the local authority did not have the skills / expertise in-house or lacked resources to prepare a report in time

* the need for an independent view because of actual or perceived bias by the LA was rarely put forward and rarely determinative although it was more commonly a reason among many

* LAs usually actively participated / welcomed the instruction of an ISW

* Judges had and were prepared to turn down applications (even joint applications) unless the need to instruct the ISW could be demonstrated

* More than half of reports were outstanding / excellent and generally good with only 3 reports being less than satisfactory

* Most reports were delivered on time

* Most Judges considered the core assessment generated by the ICS as not fit for purpose (lacking analysis, repetitious, fonts too small, too many boxes, difficult to locate information etc etc.)

* Judges raised concerns about the lack of experience and training of LA social workers in the legal arena

* Fewer than half of LAs inspected completed core assessments in 35 days

* Only 5% of assessments were consistently good (the rest were variable, improving or unacceptably poor)

* Judges do not anticipate changing their practices in respect of authorising ISWs because of the policy / legal developments such as the 26 week rule - ISWs are rarely used and need must be demonstrated but if there is a need the reports will be directed





Wednesday, 20 November 2013

Brussels II Revised In a Nutshell

BRUSSELS II REVISED (BIIR / BIIA) EU Regulation 2201/2003

* Applies to European signatories & takes precedence over Hague

* Applies to children up to 16

* Jurisdiction retained by outgoing court for 3 months after move

* Habitual residence or presence in jurisdiction founds jurisdiction (if habitual residence cannot be established)

* Mechanism for transfer in & out – Article 15

* Provisional measures in urgent situations recognised – Art 20

* Many more recognition & enforcement provisions – certificated orders post 1.3.05 are directly enforceable

* Art 23 - grounds for non-recognition

* Certification process for orders

* Art 56 – procedure to follow re placement abroad – prior consultation required – consent to placement not required*

* No reference to possibility of charges - Central Authority etc bears costs

Signatories: Austria, Belgium, Bulgaria, Cyprus (South), Czech Republic, Estonia, Finland, France, Germany, Hungary, Republic of Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, United Kingdom
NB NOT DENMARK

Article 23

Grounds of non-recognition for judgments relating to parental responsibility

A judgment relating to parental responsibility shall not be recognised:
(a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child;
(b) if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is sought;
(c) where it was given in default of appearance if the person in default was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defence unless it is determined that such person has accepted the judgment unequivocally;
(d) on the request of any person claiming that the judgment infringes his or her parental responsibility, if it was given without such person having been given an opportunity to be heard;
(e) if it is irreconcilable with a later judgment relating to parental responsibility given in the Member State in which recognition is sought;
(f) if it is irreconcilable with a later judgment relating to parental responsibility given in another Member State or in the non-Member State of the habitual residence of the child provided that the later judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.
or
(g) if the procedure laid down in Article 56 has not been complied with.

Article 24

Prohibition of review of jurisdiction of the court of origin

The jurisdiction of the court of the Member State of origin may not be reviewed. The test of public policy referred to in Articles 22(a) and 23(a) may not be applied to the rules relating to jurisdiction set out in Articles 3 to 14.

Article 25

Differences in applicable law

The recognition of a judgment may not be refused because the law of the Member State in which such recognition is sought would not allow divorce, legal separation or marriage annulment on the same facts.

Article 26

Non-review as to substance

Under no circumstances may a judgment be reviewed as to its substance.

Article 56

Placement of a child in another Member State

1. Where a court having jurisdiction under Articles 8 to 15 contemplates the placement of a child in institutional care or with a foster family and where such placement is to take place in another Member State, it shall first consult the central authority or other authority having jurisdiction in the latter State where public authority intervention in that Member State is required for domestic cases of child placement.
2. The judgment on placement referred to in paragraph 1 may be made in the requesting State only if the competent authority of the requested State has consented to the placement.
3. The procedures for consultation or consent referred to in paragraphs 1 and 2 shall be governed by the national law of the requested State.
4. Where the authority having jurisdiction under Articles 8 to 15 decides to place the child in a foster family, and where such placement is to take place in another Member State and where no public authority intervention is required in the latter Member State for domestic cases of child placement, it shall so inform the central authority or other authority having jurisdiction in the latter State.








Tuesday, 19 November 2013

Local Authority Duties to Young People who are Failed Asylum Seekers

Generally the majority of separated young people once 18 will be entitled to leaving care support up to at least the age of 21 if they have been accommodated by the local authority under section 20 of the children act 1989 for at least 13 weeks subsequent to the 14th birthday.

R(SO) v Barking and Dagenham 2010 EWCA Civ 1101



Paragraph 6 of Schedule 3 states that young people who are considered to be' failed asylum-seekers' are entitled to continue to receive leaving care support from a local authority up to the point where they' fail to comply with the removal directions' set by the UK Border Agency (a removal direction details the time and place of removal from the UK). In other words being a failed asylum seeker is not sufficient reason to withdraw or withhold social services support. They must, in addition, have failed to comply with removable directions issued in respect of them. Many young people will fit into another category in schedule 3:' persons unlawfully in the UK'. If a young person is found to be a person' unlawfully in the UK', then they can have their leaving care and support withdrawn, providing that to do so would not breach their rights under the European Convention on Human Rights or under the European Community Treaties. The UK Border Agency currently reimburses local authority for the cost of accommodating separated children seeking asylum, and continues to do so for those children when they turn 18 if their claim is still pending. Case law has made it clear that a young person should not be moved by the local authority onto support under Section 4 of the UK Border Agency, but support should instead be provided by the local authority. However, 'appeal rights exhausted' cases are eligible for funding for only 3 months. Reimbursement will only be provided if the local authority conducts a human rights assessment as necessary under Schedule 3.





Monday, 18 November 2013

International Relocation Case Summary

W (Children) [2011] EWCA Civ 345

Court of Appeal (President, Lloyd & Elias LJJ)
30.3.11


The application by an Australian mother to relocate to Australia with two children (a girl of 12 & a boy of 8) was refused at first instance.

The court held:

99. The judge himself found that the mother would be "devastated" were her application to be refused. That, in my judgment, is a critical finding. There is also the statement from her health visitor and from her general practitioner, to which the judge makes no reference, No criticism can be made or was made of her relocation plans. It follows that not only was her motivation unimpeachable, but that the plans themselves were plainly in the best interests of the children. Thus all the factors on her side of the scales weigh heavily – and most heavily weighs the effect on the children, through her, of a refusal of permission to relocate.

100. Apart from the documents to which I have referred. the judge does not put into the scales either the loss to the children of their relationship with the mother's side of the family if the children do not go to Australia, or the benefit to them of contact with that since of the family if they do. In my judgment, these are serious omissions.

101. On the other side of the scale falls to be weighed the father's objection – and I do not minimise it – namely what he sees as the loss of the newly gained relationship with himself and other members of his family, including, of course, his two adult children by a different relationship.

102. My conclusion is that even when this factor is weighed in the scales the balance still comes down heavily in favour of relocation. I reach this conclusion for a number of reasons.

103. The first is, of course, that when one is looking at the best interests of children, the best interests of their primary carer is a very important consideration and, I have to say, on the facts of this case, clearly outweighs the newly acquired relationship with the left behind parent.

104. Secondly, there was no evidence that the father's relationship with the children would be terminated. The mother's evidence was that the children would visit England and spend a month a year with the father. He would also have the benefit of Skype, telephone and writing, both by Email and letter. These, moreover, are all within the province of the court to order – a fact which the judge nowhere considers.

105. Thirdly the judge was in my judgment wrong to assume the impotence of the court either here or in Australia. If either court refused to make a contact order – or rescinded an order already made, it could only do so on the basis that the new order – or lack of it – was in the best interests of the children. As to that, the common evidence was that the continuation and expansion of the relationship was in the best interests of the children, and speaking for myself, I would expect both courts so to order.

106. Equally, in these days of instant communication and internationally established liaison judges, I have more confidence than the judge (he expressed none) that neither court would sit idly by and allow the relationship to wither. In my judgment, the father should not be permitted to allow the fact that he is a litigant in person to lead the court to believe that as a consequence he is so disadvantaged that nothing will happen, or that his difficulties are insuperable.

107. It is in this context that I find that judge's bland acceptance of the father's failure of apply to the court for contact unacceptable. The proof of that particular pudding is surely in the eating. The father did not apply. When the mother applied to relocate, what happens? He gets court ordered contact. Even if – as to which there is no finding – the mother was obstructive, she did not obstruct the court ordered contact – rather the reverse

108. There is, moreover, a further reason for criticising the judge under this heading. Professor Marilyn Freeman of the Centre for Family Law and Practice in London, to whose work the father refers, conducted a one year qualitative research project into the question of relocation commencing in June 2008. As well as organising a conference in London in the summer of 2010, Professor Freeman published an article in International Family Law, which is based on the paper she gave to an earlier conference in South Africa. She asks the direct question: "Is Relocation in Children's Best Interests?" And the short answer which she gives is : "we don't know". She concludes her article with these words:

"So we have much work to do. We need to know, firstly, what impact relocation has on the relocated child and, in particular, about children's resiliency in these circumstances. From here, we will need to have the basis for international law to do what it says on the tin: to work in the best interests of the children the law seeks to serve."

Nobody, I think, could disagree with that. I certainly do not.

109. In my judgment, it follows that the balancing exercise has to be carried out on the facts of the particular case. For the English Judge at first instance the facts may show a case in which the importance of the continuing relationship with a left behind parent tips the scale against relocation. Such cases do, of course, exist: see, for example, the decision of Mostyn J in Re AR (a child: relocation) [2010] EWHC 1346, to which the father refers. It is also, I think, worth noting that where the motivation of the relocating parent is found by the court to be inimical to welfare, the court has the power to prevent even a modest internal relocation: - see Re L (Shared Residence Order [2009] 1 FLR 1157.

In addition to the specific issue raised in the appeal the President also reminds practitioners of the fact specific nature of relocation cases and the policy approach of the court to appeals in family cases.

Like all "relocation" cases, this application is highly fact specific and very difficult.



Friday, 15 November 2013

International Relocation Case Summary

F (A Child) [2012] EWCA Civ 1364


Ct Appeal: Pill, Toulson, Munby LJJ

This case concerned the Spanish parents of a boy aged 8. They moved to England in 2009. By May 2011 the parents made plans to stay until 2013. In July / August 2011 the parents returned to Spain where it became obvious that their relationship was in trouble. The mother briefly came back to England and left the son with his father so that he effectively became the primary carer in the year before the appealed decision. It was her wish to live in Spain permanently whereas the father wished to stay in England. There were a number of court hearings during which it was decided that the child was habitually resident in England. The court eventually made a shared residence order but gave the mother permission to remove the child from the jurisdiction, effectively allowing father to have contact for about half of the school holidays.

Munby LJ characterised the case as neither a Payne case because the mother was not the primary carer nor a shared care case in the sense intended in Re Y & K v K.

Despite it not strictly being a Payne case this did not mean that the court was not entitled to consider the guidance in Payne. Equally it was not a case in which the fact that the father was the primary carer at the time the decision was made to allow the mother to leave the jurisdiction was decisive.

The Judge had weighed many factors in the balance as he was entitled to do including the length of time the child had lived in Spain before the parents moved to England, the fact that almost all of his extended family remained in Spain and that the boy saw himself very much as Spanish & was bilingual and had stayed in touch with his Spanish school friends, the fact that the parents had not decided to live in the UK forever and were likely to have returned to Spain at some point & that the father would be likely to move back to Spain if mother was allowed to return with the child, the ease with which the father could have extensive contact (both parents would promote contact with the other), the evident difficulty which an experienced and thoughtful Cafcass Officer had in making any recommendation (indicating that it was a finely balanced case), the fact that the boy himself was happy in both households but expressed a preference for the short school day in Spain and that mother would be marginally more available to the son as a result of her working hours.

So far as the emotional impact of his decision on the parents he found that both of them would be emotionally devastated at first but neither of them would collapse and in time they would recover.

There is another lesson to be learnt from this case. Adopting conventional terminology, this was neither a 'primary carer' nor a 'shared care' case. In other words, and like a number of other international relocation cases, it did not fall comfortably within the existing taxonomy. ... advocates & judges must resist the temptation to try and force the facts of the particular case with which they are concerned within some forensic straitjacket. Asking whether a case is a "Payne type case" or a "K v K" type case or a "Re Y type case", when in truth it may be none of them, is simply a recipe for unnecessary and inappropriate forensic dispute or worse. It is to be avoided. The focus from beginning to end must be on the child's best interests