Family Law Blog

  • 12 Jul
    Exclusion Of McKenzie Friend

    The McF has been far too involved and familiar with the Children’s Services involved, which raises issues as to the impartiality of that evidence and whether it can be relied upon

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  • 21 Apr
    Damages Against The Lord Chancellor

    A High Court Judge imposed the sentence which was quashed by the Court of Appeal on the grounds of various serious procedural irregularities. A different High Court Judge dismissed his claim for damages.

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  • 28 Mar
    Deprivation of Liberty


    Capacity and Deprivation of Liberty report published by Law Commission recommends replacing DoLS with a new scheme, called the Liberty Protection Safeguards.

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  • 17 Feb
    J-v-B and The Children (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4

    Father leaves the strict Jewish community and changes gender; the Court refuses him/her direct contact.

    Extracts from the Judgment:-


    165. Here, the best possible outcome would be for the children to live with their mother, grow up in the community, and enjoy a full relationship with their father by regular contact. The worst outcome, I find, would be for the mother and children to be excluded from the community. The question is whether, in striving for the best outcome, the court would instead bring about the worst.

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  • 24 Jan
    EX PARTE NON-MOLESTATION ORDERS

    The President of the Family Division has revised his Guidance, which was originally issued in 2014...

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  • 09 Jan
    COMMITTAL

    A recent case highlights some more unusual problems about committals. This was an application in respect of a statement with a declaration of truth in which the father said he did not know where his son was, last seen six years previously in Afghanistan...

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  • 19 Dec
    DOMESTIC VIOLENCE STATISTICS
    • The Office for National Statistics has released figures for reported domestic violence which reveal that 1.03 million domestic abuse-related incidents were recorded by the police in the year to March 2016. In 421,000 of these incidents, a criminal offence was committed, which represents 1 in 10 of all crimes recorded...
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  • 12 Dec
    You reap what you sow... the impact of the legal aid changes hits home...

    On the 30th November the Lord Chief Justice, Lord Thomas, held his annual press conference and commented on the prevalence of litigants in person (LIP) and the use of McKenzie friends in litigation...

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  • 28 Nov
    Court of Appeal Looks at ICO's Again

    1. The problem of the application by the LA for removal of children from home as an interim measure in the context of a case of long-term neglect was looked at again by the Court of Appeal in the case of Re L Children [2016] EWCA Civ 1110...

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  • 21 Nov
    Terminally ill teen won historic ruling to preserve body...

    Although some may describe this as bonkers and have described it as science fiction, this has been the first such case to be heard in our courts...

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  • 16 Nov
    Should you ever need it....? Applications to the ECHR

    The UK Parliament library has published new guidelines on applying to the European Court of Human Rights. The Guide is comprehensive and provides a ready reckoner for anyone wishing to pursue a human rights claim...

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  • 15 Nov
    Radicalisation and Private Law Cases

    The issue has become more prevalent as we engage with the issues in the Middle East and particularly in Syria...

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  • 14 Nov
    WHO WOULD WANT TO GO TO SCOTLAND ANYWAY?

    The President recently decided a case involving the placement of children in secure accommodation in Scotland. The children concerned were all subject to SAO made in England and Wales the issue was the approval of the secure accommodation centres north of the border...

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  • 01 Nov
    A Matter of Life or Death

    On 11th October 2016 Mr Justice Baker delivered the Oxford Shrieval Lecture. He spoke about the decisions made by Judges of the Court of Protection when faced with an application for an order for permission to withdraw artificial nutrition and hydration (ANH)...

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  • 28 Oct
    Police Contributions to Child Protection...

    Ofsted's Chief Inspector, Sir Michael Wilshaw has written to Her Majesty's Chief Inspector of Constabulary raising concerns about the contribution of police to safeguarding children...

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  • 26 Oct
    "Nothing Else Will Do"

    At the FLBA conference this weekend Lord Justice MacFarlane gave a speech in which he set out the reasoning behind the phrase which we all use so often in adoption cases...

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  • 10 Oct
    Documents and LIPs

    In all areas of family law, it is common for lay clients to alter their instructions late in the day. This can often result in Position Statements or Skeleton Arguments needing to be filed and served on the morning of hearings...

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  • 10 Oct
    More Family Law From The Archers

    The storyline has now turned to the questions of contact between the children and Rob. A number of issues have come up recently...

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  • 06 Sep
    No right to be brought up by natural family

    In the recent Court of Appeal case of ​Re W [2016] EWCA Civ 793, Jackson, McFarlane and Lindblom LJJ, allowed an appeal against an order that a child who had been placed for adoption for a considerable time should be placed with grandparents who had assumed the care of the child's younger sibling...

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  • 31 Aug
    Wired for sound... the use of covert recordings in children cases a step away from common sense and good parenting

    Mr Justice Peter Jackson decided the case of M v F (Covert Recording of children) 2016 EWFC 29. In this case a child had, unbeknownst to them, been carrying a covert recording device sewn into its school uniform. This had been used to record conversations with the mother...

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  • 02 Aug
    TOLATA and Inheritance Claims the Case for Reform - the report of Lord Justice Briggs and the Civil Courts Structure Review

    The report of Lord Justice Briggs has been published - it deals with the proposed reform to the overlap between Family and Civil courts in respect of the jurisdictions to hear TOLATA and Inheritance Act claims. The report makes a number of recommendations...

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  • 26 Jul
    Bundles for Cases in the Family Court at Salisbury before District Judges

    Yesterday afternoon, I appeared in the Family Court at Salisbury in front of District Judge Brookes for a First Appointment. Those instructing me were also in attendance. As per FPR, PD27A Bundles had been produced in fear of the consequences of failing to comply with this Practice Direction.

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  • 19 Jul
    M v F (Covert Recording of Children)

    This case is reported at [2016] EWFC 29. It is a decision of Peter Jackson J in which he criticises the father for concealing a recording device on the child which was the subject of the proceedings in order to obtain evidence...

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  • 11 Jul
    Removal of Guardian

    A recent case reported an attempt to remove a Guardian on the basis of bias, having expressed an opinion rather early in the investigation. Not surprisingly the application failed and there is some guidance on such applications...

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  • 08 Jul
    26 Weeks is it being achieved?? The publication of the phase three review into the PLO changes and the timescale of 26 weeks

    The third phase of the review in to the Family Justice reforms has been published. The DofE carried out a series of phased reviews of which this is the last. The review asks for information form 21 separate sample Local Authorities who are asked to comment on the usage and working of the 26-week time limit and how this imposition has affected the working of the Local Authorities...

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  • 04 Jul
    QS v RS (No 2) (Application to Terminate Appointment of Guardian) [2016] EWHC 1443 (Fam)

    Take a look at the link below...

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  • 01 Jul
    Yet More On The Archers

    I know.... you all think I am obsessed! I confess to listening to The Archers for.... well, over thirty years off and on...

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  • 27 Jun
    Resolution’s Response to Brexit…

    Following the outcome of the EU Referendum, Resolution Chair Nigel Shepherd has provided this statement...

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  • 23 Jun
    Transparency In The Family Court

    The clamour for transparency in the Family Court has come to the fore again. I know that the President is in favour. I know I am probably old-fashioned in worrying that it is not a solution to the perceived ill of lack of understanding of what the Family Court does and why decisions are made. Let me explain why I am concerned.

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  • 15 Jun
    Going It Some

    The link below may make one wonder what some will do to achieve records, but the underlying stories are of considerable sadness

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  • 03 Jun
    The Reform of LSCBs, SCRs and CDOPs – the Government response to the Wood Report

    The report published in May 2016 by Alan Wood CBE into the reform of LSCBs (Local Safeguarding Children Boards’), SCRs (Serious Case Reviews) and CDOPs (Child Death Overview Panels) has received a positive response from the Government. The report is set out in full at the link below as is the Government response published in May 2016. The Wood report looked at the need to reform all three bodies and to explore the need for better outcomes for children and more effective learning outcomes for practitioners.

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  • 02 Jun
    More Work For Family Lawyers on The Archers

    When the story line about Rob and Helen Titchener unfolded, the focus was on whether Helen has a defence to GBH/ attempted murder of her controlling and, I would say, cruel, husband. Now there is more to think about from the point of view of family law.

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  • 31 May
    Covert recordings… A bad example

    The use of covert recordings is frowned upon but the case of M v F (Covert Recording of Children) ([2016] EWFC 29) has been used as an example to highlight the disastrous consequences when one parent covertly records a child who remained blissfully unaware. The case concerned a dispute as to whether a child should continue to live with her father or move to live with her mother.

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  • 24 May
    (E (Female Genital Mutilation and Permission to Remove) [2016] EWHC 1052 (Fam)

    In a recent case Macdonald J found that a mother had been lying in her allegations about forced marriage and Female Genital Mutilation to the extent that he gave the father permission permanently to remove the children to Nigeria. There is useful stuff about the practice of FGM and the following assessment of the mother’s evidence...

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  • 10 May
    Family perspective on the Helen and Rob story in the Archers

    Listeners to The Archers have followed the story of how Rob Ttitchener emotionally abused his girlfriend and then wife Helen. That is not his only transgression- he also assaulted a hunt saboteur and persuaded Shula – née Archer – to lie to the police on his behalf. He behaved badly at cricket refusing to accept that he was out – much to the indignation of Adam – Helen’s cousin. Most listeners took a real dislike to the man.

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  • 02 May
    Presumption of Death – A Rare Consideration

    The Presumption of Death Act 2013 sets up a regime whereby in the event that someone is either proven to be dead or has “not been known to be alive” for a period of seven years there can be an application to the Court for a declaration that the subject person has died and a declaration that they are presumed to be dead is then made. This was done in the case of the wife of a Somali man who had left Somalia in 1998 whereupon he travelled to the UK and obtained refugee status and subsequently citizenship...

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  • 28 Apr
    FEMALE GENITAL MUTILATION

    Below is the link to the resolution FGC toolkit...

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  • 26 Apr
    Leave to Remove from E&W, Circumcision and the Muslim Faith

    All of these subjects were discussed in L & B (Children Specific Issues Temporary Leave to Remove from the jurisdiction Circumcision) 2016 EWHC p 849 Fam by Mrs Justice Roberts. The father was a devote Muslim and committed to having his two sons raised in the Muslim faith. He was from Algeria and now had dual Algerian and UK citizenship. The father had family in the UAE, Algeria and France. The children's mother lived and grew up in Devon. The parents had gone through a Muslim ceremony. The marriage broke down...

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  • 25 Apr
    Evidence Requirements in Domestic Violence Legal Aid Applications

    Following on from the decision in R (Rights of Women) v Secretary of state for Justice and the Lord Chancellor 2016 EWCA Civ p91 - in which the Court of Appeal quashed the requirement under the Civil Legal Aid (Procedure) Regulations 2012 Reg 33

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  • 16 Feb
    Guardians at Court

    A recent Practice Direction in the Central Family Court has said that Guardians should only attend court to give evidence or hear the evidence of parents or the child. In any other case the Guardian should not attend unless an order has been made to that effect with reasons.

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  • 09 Feb
    Attention all practitioners of private law children matters…

    The President of the Family Division has recently released a new “batch” of CAP Forms. The purpose of these latest amendments is to try to ensure they are as “concise as possible and easy to understand” for unrepresented parties.

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  • 29 Jan
    Cases concerning the future care of children of parents with learning disabilities

    There have been a series of reports involving the facts of this case. It is a combination of a number of factors:

    1. The new 26 week limit is said to have resulted in more cases where the local authority’s plan is for the child to be cared for at home under a care order. This was such a case but one where the plan was described before Munby P as “brave” and where, with hindsight, there was a high risk of brea
    2. The removal of the child from his parents provoked consideration of how a local authority should behave when considering the removal of a child from his parents or family and the availability of injunctions under Human Rights Act 1998
    3. The availability of legal aid to parents applying for a discharge of care order.
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  • 14 Jan
    A Political Ambush!

    The Family Court in Bristol recently decided an appeal based on a Prohibited Steps Order preventing a father from involving his child in political activity. The father was a perspective parliamentary candidate for UKIP and had attended a dispute resolution appointment.

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  • 08 Jan
    Delays in CAFCASS safeguarding letters: how to proceed when the Court will not endorse an agreed order without them

    Returning to work after the Christmas break is always a bit of jolt to the system after a season of general good will etc. It so happened that this week I have dealt with solely private law cases, and in one of these, the Court has not had the benefit of a “safeguarding letter” from CAFCASS. I hasten to add that in this case the fault was not that of CAFCASS but due to the Court office in question failing to send details of the application for a child arrangements order to CAFCASS until 14 days after the application was filed, which meant there was insufficient time for the checks to be carried out before the matter was in Court on 5th January. There are various reasons why a safeguarding letter cannot be completed, including the CAFCASS officer being unable to contact one of the lay parties, and I have noticed that it is increasingly frequent to arrive for a hearing to be told that the safeguarding letter has not been completed.

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  • 12 Nov
    COMMITTAL FOR FAILURE TO COMPLY WITH AN ORDER FOR THE RETURN OF CHILDREN

    In J (Children) [2015] EWCA Civ 1019 [2015] 2 FLR 1019, the Court of Appeal refused a father’s claim for committal of mother for failure to return two children aged 17 and 15 to him in Spain. The children refused to go and it was decided that, despite criticism of mother, father had not proved to the criminal standard of proof that the mother had not done all that she lawfully could to overcome the children's resistance.

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  • 03 Nov
    Yet more criticism if the use of s. 20 accommodation

    Today the Court of Appeal handed down a judgement dealing with an appeal concerning the practice, procedure and policy with regard to adoptions of children whose parents are not British nationals. However, within the President’s judgement is yet another searing criticism of the use of s.20 accommodation by local authorities.

    Starting at the end of that passage – the President concludes his review of the authorities by reminding all practitioners that if consent is not truly given for a child to be accommodated, then the removal of that child from his family, is plainly wrong.

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  • 30 Oct
    Without Notice Applications: FGM Protection Orders

    As regular readers of this site, CPD conference attendees, and viewers of LegalTV know, I’ve written a couple of previous articles about without notice applications, given a seminar about them, and participated in a TV discussion about them (as yet I’m not viewable on Netflix but my people are sorting that out as I type). In this article, I’m returning to the subject to deal with a new type of WNO application: the Female Genital Mutilation Protection Order. As the name suggests, this is a highly specific type of order and its sole purpose is to protect women and girls from suffering any form of genital mutilation that is not genuinely required for medical reasons.

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  • 23 Oct
    Changing your horse at the appeal stage - counsel vs LIP

    A father appealed a decision of the Family Court where a full care order had been made with a care plan for long term fostering. The child was 5 years old. The appeal was supported by the mother and opposed by the Local Authority. Threshold had been agreed in the Court below. The father sacked his legal team claiming they were ineffectual and appealed as a LIP. The father filed a skeleton argument. The skeleton argument and grounds of appeal sought to argue that threshold was not agreed at any stage, that assessments failed to recognise positives, there were procedural irregularities, etc etc.

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  • 29 Sep
    The Family Drug and Alcohol Court is coming to Bournemouth from 1st October 2015

    FDAC was launched in January 2008. It is an innovative way of dealing with care proceedings when substance misuse causes harm to children. The FDAC process is based on a model widely used in the USA and was first adopted by District Judge Crichton. It is a collaborative approach, which features judicial continuity and a problem-solving therapeutic approach by a specialist, multi-disciplinary team. 

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  • 21 Aug
    Once in a Blue Moon - The Revocation of an Adoption Order

    This article follows on from the recent decision by Mrs Justice Pauffley in the Family Division on the 31.7.15 reported as PK v Mr and Mrs K 2015 EWHC 2316 (Fam)

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  • 21 Aug
    Once in a Blue Moon - The Revocation of an Adoption Order

    This article follows on from the recent decision by Mrs Justice Pauffley in the Family Division on the 31.7.15 reported as PK v Mr and Mrs K 2015 EWHC 2316 (Fam)

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  • 07 Aug
    President returns children to families suspected of joining ISIS

    On the face of it, the decision in the case of X (Children) and Y (Children) (emergency protection orders) [2015] EWHC 2265 (Fam) may appear somewhat reckless, particularly given the number of reported families fleeing the UK to join ISIS. However, one of the conditions imposed was for the parents to wear electronic tags. It is this measure that provided the Court with the very-high degree of assurance, which was necessary for the children to be returned to parental care.

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  • 04 Aug
    FGM Protection orders

    The Serious Crime Act 2015 has introduced into the Female Genital Mutilation Act 2003 a new section – Section 5A. This section mimics the provision for protection orders contained in the Forced Marriage (Civil Protection) Act 2007.

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  • 03 Aug
    SGO Consultation

    The use of SGO (Special Guardianship Orders) has been reviewed once before. They were introduced in 2005 to provide an alternative form, of permanence for children which involves a placement being akin to adoption but without the loss of the birth family. The orders have proven attractive in a myriad of different situations but in particular where there are relatives and members of the extended family – grandparents very often – who wish to offer a permanent home to a child subject to a care application. They are orders that are often used where the only other option is that of permanence for a child outside its birth family by way of adoption. The SGO plan should accompany the order and support the placement – by way of advice, practical support, funding and social work assistance, in a fashion not dissimilar to adoption or foster carer support.

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  • 30 Jul
    Repent, Repent: the End of the World is Nigh!

    Actually, it’s probably an awful lot closer than that if you believe the press coverage of the Court of Appeal’s recent decision in Ilott v. Mitson & Others [2015] EWCA Civ 797 (Arden, Ryder LJJ and Sir Colin Rimer). That being so, you should read this blog entry pretty quickly otherwise there’s a chance that you’ll have dissolved into a random assortment of atoms before you get round to doing so.

    The case concerned the estate of Melita Jackson. In her will made in 2002, Mrs Jackson left £5,000 to the BBC Benevolent Fund (no, I didn’t know it existed either) and equal shares of the remainder of the estate (some £481,000) to The Blue Cross, the RSPB, and the RSPCA. In doing so, she failed to make any provision for her only child, Heather, or any other family member. Mrs Jackson died in 2004, having not actively supported any of the 4 charities during her lifetime. While the BBC Benevolent Fund played no role in the subsequent proceedings, the other 3 charities fought every step of the way to uphold the will.

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  • 29 Jul
    Court Closures

    Reeling as we still are from the closure of Alton FPC and our loss of Angela, see the latest -

    The Lord Chancellor has just launched a consultation on the Court Estate.  The proposal includes the closure of very many Magistrates, Crown and County Courts as well as Tribunal venues.

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  • 30 Jun
    Misuse of Section 20 – local judicial guidance

    Last  week HHJ Bond provided guidance in respect of the use/misuse of section 20 accommodation (see below). Whilst HHJ Bond sits in Bournemouth, the issue of extended section 20 agreements is certainly currently a live one in Portsmouth (and undoubtedly other court centres) where the initial directions on allocation not infrequently contain a direction for the Local Authority to write to the Designated Family Judge with an explanation for the amount of time a child has been placed in section 20 accommodation without proceedings being issued.

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  • 18 Jun
    R (on the application of IM and MM) v HFEA [2015]

    The case of R (on the application of IM and MM) v HFEA [2015] EWHC 1706 (Admin) involved the parents of a deceased daughter, who had her eggs frozen shortly before her death.

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  • 15 Jun
    BR II Revised

    We held our Child Care Summer conference last Thursday at the Grand Devere Hotel in Southampton. The headliner was Dr Dipak Kanabar talking about infant skull fractures, backed up by Amy Lush on Immigration, Graeme Harrison on Threshold after Re A and Re J, Dylan Morgan with his Public Law update and Emma Southern on Brussels II R.

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  • 04 Jun
    Why is the Human Rights Act so important?

    The present government was elected on a manifesto which included a promise to repeal the Human Rights Act 1998. I think that it is short sighted and it looks as though it is prompted by “headline” cases.

    There was a debate today in Parliament when the Prime Minister said he wanted to get rid of the Act – or more accurately, if he thinks about it, the European Convention on Human Rights 1950 (ECHR 1950), because of the foreign prisoners who cannot be deported because they claim a right to family life (Article 8). We also know that he has said on a previous occasion that the very thought of prisoners being able to vote makes him feel sick.

    I am sure he is motivated by a range of political factors when saying those things and many of us would disagree with him. That is not the point I want to make here.

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  • 02 Jun
    Private Law Legal Aid - Just when you thought there was hope . . . . ?

    The Court of Appeal has considered the decision in the case of Re K & H (Children) 2015 EWCA Civ 543. It is the case where the judge at first instance – HHJ Bellamy – made an order that the Lord Chancellor should pay for the legal representation of the father in a private law contact case. The father was unrepresented and was not in any way eligible for LAA funding and too modest of means to pay for lawyers. He wanted contact to two children under the age of ten and there were allegations of sexual abuse by him toward the children’s half sibling. The half sibling was aged 17 at the time of the appeal; and 15 at the date of making the allegations.

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  • 22 May
    Women joining forces in “First Wives Club”

    Readers may recall the case of Michelle Young, who was awarded £20 million in a divorce settlement, where she claimed that her ex-husband had significantly greater wealth, namely a “few billion” that he had successfully hidden from the Court in offshore accounts.  Ms Young has now formed a club with other divorcees, who have joined together to form the Michelle Young Foundation, which they refer to colloquially as “The First Wives Club”.

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  • 05 May
    NSPCC Local Initiative

    "Letting The Future In" is a new therapy service the NSPCC is providing in Southampton for children who have suffered sexual abuse. This follows the news that in the year ending March, 2014, Hampshire has the largest number of reported cases of child sexual abuse in the country.

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  • 23 Apr
    Family Court or Coroner?

    In February 2015 Mr Justice Hayden heard an application by an NHS Trust for a declaration in relation to a 19 month old child that was brain stem dead. The case is reported as Re A (A child)  [2015] EWHC 443 (Fam) and can also be found at http://www.familylawweek.co.uk/site.aspx?i=ed143387.

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  • 07 Apr
    Local Authority’s appeal against costs order allowed by Supreme Court

    In Re S (A Child) [2015] UKSC 20 https://www.supremecourt.uk/decidedcases/docs/UKSC_2014_0101_Judgment.pdf the Supreme Court allowed the Local Authority's appeal against a costs order made against it.

    The Justices, comprising Lady Hale, Lord Kerr, Lord Wilson, Lord Hughes and Lord Toulson, unanimously held that the principle confirmed by the Supreme Court  In re T (Care Proceedings: costs) [2012] UKSC 36 applied to this case

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  • 01 Apr
    Investigation into the application of Shari’a Law

    The Home Secretary, Theresa May, announced earlier this week that there will be an independent investigation into the application of Shari'a law in England and Wales.

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  • 27 Mar
    Budget 2015

    There are important changes in respect of Childcare vouchers which will be relevant to working families. Read further to find out more.

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  • 20 Mar
    Wyatt v Vince: Financial relief 18 years after the grant of decree absolute

    Although we are only 3 months into 2015, this will no doubt be one of the year’s more significant cases decided and one with potential to open floodgates.

    Had the question been put before now, one would undoubtedly have said that prospects of pursuing a claim for financial relief some 18 years after the grant of decree absolute are slim.

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  • 16 Mar
    ANOTHER WAY FORWARD?

    In MG & JG v JF Mostyn J granted an application under Schedule 1 of the Children Act where the sole relief sought was an order that the Respondent pay the costs incurred by the Applicants in separate proceedings under s.8. His judgment chronicles the demolition of the fourth pillar of the welfare state:

               “Even though MG and JG are certainly not entitled to an order for costs they are entitled to seek an order for costs funding. To JF that may seem (with reason) to be a specious distinction without a difference, but that is where we find ourselves, now that the fourth pillar of the welfare state has been largely demolished.”

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  • 09 Mar
    Are judges rude?

    There has been an interesting case reported at the end of February 2015 concerning the behaviour and ill-judgement of a judge – A (Children) [2015] EWCA Civ 133.

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  • 27 Feb
    Shaken Baby Syndrome - a powerful challenge

    Some 40 years ago research by Dr Norman Guthkelch lead in part to the establishment of a connection between the triad of injuries - retinal haemorrhage, subdural haemorrhage and brain encephalopathy - with inflicted injury.  The author of that research has now signed an open letter alongside eminent figures from law, science, biomechanics, pathology, medicine and science raising issues over the validity of the opinions expressed by experts over SBS.

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  • 16 Feb
    Northamptonshire County Council pays damages to a child due to Human Rights breaches

    One of the key cases for practitioners in the past week, for me, has to be Northamptonshire County Council v AS and Ors (Rev 1) [2015] EWHC 199 (Fam).  If you are looking for a bit of breakfast reading the full judgment can be accessed here: http://www.bailii.org/ew/cases/EWHC/Fam/2015/199.html.

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  • 04 Feb
    Blood Transfusions

    Moylan J decided a very recent private law case on the issue of giving a child a blood transfusion against the wishes of its parents. The Moylan authority is An NHS Trust v Child B & Others 2014 EWHC 3486 (Fam).
    The child in question had suffered burns and needed a skin graft.

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  • 03 Feb
    It Just Keeps On Getting Worse

    Child contact centres, where children meet their separated parents who cannot agree access rights, are disappearing as legal aid cuts take effect.

    The National Association for Child Contact Centres (NACCC) says 40 centres have closed in the last 18 months across England and Wales – and the pace of closures is accelerating. It says that, because it can no longer obtain legal aid, the number of parents accessing the family courts to resolve their problems has halved. As a result they are not receiving advice from solicitors who are likely to refer them to the centres.

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  • 15 Jan
    Ex Parte Applications: Some Further Thoughts

    As some of you will recall, I gave a seminar about ex parte applications at the start of November 2014. For those of you who were unable to attend, copies of the lecture notes are available – just email me and I’ll send them to you.

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  • 16 Dec
    PUBLICITY IN THE FAMILY COURTS

    Over the last few years the work done in the family court has been reported in the press far more than has ever been the case in the past. The President of the Family Division, Sir James Munby has encouraged this trend. I have described the guidance he has given in a previous blog.

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  • 15 Dec
    Care Plans: The Court of Appeal Speaks Out

    Appearing before Her Honour Judge Black in Portsmouth is one of the few pleasures I have in life, particularly since she accommodates my failing hearing by shouting at me whenever I come within 50 yards of her court. I may not like what I hear her saying but at least I can hear what she’s saying. When you reach my advanced state of decrepitude, you take comfort where you can find it.

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  • 04 Dec
    City Council uses injunctive proceedings to its advantage in child sexual exploitation case.

    An innovative approach has been taken by a local authority to tackle a situation in which a group of men were considered to be 'inappropriately' in the company of a girl aged 17 years old. 

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  • 03 Dec
    Tighter rules to prevent sham marriages

    New powers will come into effect from 2nd March 2015, as part of the Immigration Act, to enable the Home Office to tackle sham marriages and will see the notice period in England and Wales for marriage and civil partnership extended from 15 days to 28 days.

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  • 21 Nov
    LEGAL AID CUTS

    Two reports have been published this week. The first heralds that the government will save £300 million pounds, £30 million more than expected, by the cuts in legal aid. The second points out that 17,268 cases involving contact with children, where both parties represented themselves, started in the family courts in 2013-14, an increase of 8,110, or 89%, on the previous year and, overall, there were 79,747 cases starting in the family courts where both parties were so-called “litigants in person” in the year 2013-14, an increase of 18,519, or 30%, from the previous year.

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  • 21 Nov
    Quell surprise!! The National Audit Office wears an “I told you so!” tee shirt

    The National Audit Office (NAO) has published a report – please see the link below – critiquing the LAPSO Legal Aid reforms. The NAO concludes that the MOJ did not think through the reforms and did not consider the knock on effects that the reforms would have on the wider system

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  • 07 Nov
    The sequel to Re DE

    In the original care proceedings the local authority’s plan was to place the child at home with the parents but under a care order. The effect of that is that the local authority would share parental responsibility with the parents; the local authority could decide where the child should live, go to nursery or school and about medical treatment. The most important power is that the local authority can remove the child from his parents.

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  • 24 Oct
    How to help litigants in person without giving them legal aid for a lawyer

    It should be noted at the outset that as many as 650,000 people were deprived of support by changes to legal aid, in most cases involving family disputes, welfare benefits, clinical negligence, employment, housing, debt, immigration and education. 

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  • 20 Oct
    Here Comes Shared Parenting!

    Except, of course, it doesn’t.


    On 13th October 2014, the government published the Children and Families Act 2014 (Commencement No 5 and Transitional Provision) Order 2014. This snappily titled piece of secondary legislation brings into effect section 11 of the Children and Families Act 2014 on 22nd October 2014.

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  • 14 Oct
    The Story of Humpty Dumpty

    Are you sitting comfortably? Then I’ll begin.
    Not so long ago in a city not so far away, Good Queen Bess made Humpty Dumpty President of the Family Division. “From now on,” said Humpty Dumpty as he hauled himself up on to the top of the wall, “Everybody in the Kingdom should do exactly what I say because it’s clear I’m much cleverer than they are.”

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  • 08 Oct
    Revised Experts Practice Direction

    There has been a change to the Practice Direction 25B. From now on only recognised, experienced and accredited professionals will meet the criteria of being “experts” for the purposes of family court proceedings. It is perhaps understandable that at some stage the Courts would set the qualification criteria for experts to be involved in the family courts and indeed in decision making over children’s lives.

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  • 08 Oct
    GOVERNMENT CAUSES FURTHER MISERY FOR SINGLE PARENTS?

    On 30th June the Government introduced a £20 application fee for using the new Child Maintenance Service. They expected a 12% drop in the number of applications but the early figures show a 38% fall, three times more than estimated (guessed?).

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  • 24 Sep
    Who do we say, “I told you so” to?

    It has been reported that a survey by the office of the Children’s Commissioner concerning the impact of the withdrawal of legal aid last year reveals that in 70% of family cases, one or both sides appeared as a litigant in person. The study also indicated that only 57 people were granted "exceptional funding" by the Ministry of Justice, notwithstanding the government's expectation that there would be 3,700 such grants.

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  • 24 Sep
    K (Children)

    This case was decided by the Court of Appeal at the end of July 2014 and judgement was handed down on 2nd September 2014. It is reported at K Children [2014] EWCA Civ 1195 and www.familylawweek.co.uk/site_aspx?i=ed132053.

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  • 19 Sep
    The Ashya King Fiasco

    Until the press decided that the Scottish Referendum was more interesting, the plight of Ashya King was banner headlines around the world. Baker J’s decision in the case has now been published and is available on a variety of websites .

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  • 10 Sep
    Supreme Court Appeal set for June 2015 in the Sharland v Sharland divorce case

    Back in February those divorce lawyers amongst you may recall reading the case of S v S [2014] EWCA Civ 95, which concerned an appeal to the Court of Appeal by the wife in the case, Mrs Sharland. 

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  • 05 Sep
    “The first thing we do is let’s kill all the lawyers”

    I was reminded of this line from Shakespeare’s Henry VI Part II the other day due to a Radio 4 feature. As soon as I heard it I thought of Mr Grayling. The line is uttered by a character called Dick the Butcher who is part of a popular Kent based rebellion led by a man called Jack Cade. The rebellion was against the unpopular King Henry VI and the taxation he had been forced to impose on common people to finance his war in France.

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  • 01 Sep
    AN INTERESTING QUESTION?

    If a local authority has applied for a Placement Order with proper prior authority from the Agency Decision Maker that complies with Re B (Placement Order) [2008] 2 FLR 1404, life, as we know in family work, goes on.

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  • 13 Aug
    Disclosure of Serious Case Reviews

    In a recent case which arose when he was sitting in Bristol. Sir James Munby P considered whether the report of a Serious Case Review should be disclosed to the father: Re X (A Child) [2014] EWHC 2522.

    The history of the case is that there were care proceedings in 2010 in relation to a boy, now aged 13. The boy was stabbed by his mother. A care order was made in 2012. The Local Safeguarding Children’s Board (LSCB) undertook a Serious Case Review which was completed in 2011 and before the final order was made in the care proceedings.

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  • 08 Aug
    Final Care Plans - When Courts Say "No!"


    Recently, I represented a  mother at a final hearing in care proceedings. The chief allegations against  her  and  the  father  were  that  they  were  incapable  of  consistently  providing  adequate home conditions and basic care for the children who were 15, 11, and 10 years old.

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  • 02 Aug
    “Slapdash, lackadaisical and on occasions almost contumelious” – the President gets tough

    A judgment handed down on 25th July 2014 by the President of the Family Division, Sir James Munby, reinforced the message he aims to make resonate through the Family Court. Not only do we need to stick to the 26 weeks (although note recent case on exceptional cases: M-F (Children)[2104] EWCA Civ 991 for judgment  click here), but family practitioners cannot simply agree to vary the court timetable amongst themselves, they must return to the Court with any proposed change to the timetable.

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  • 31 Jul
    The Child’s Voice at Court

    Parents involved in private law disputes (i.e. disputes over where your child lives for the most part and how much contact the child should have with the parent he does not live with) often ask me how old the child has to be before their feelings are taken into account by the Judge.

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  • 25 Jul
    A little too robust!? Judicial indications in care cases


    There is a recent decision of the Court of Appeal called Re Q 2014 EWCA Civ 918 in which Lord Justice MacFarlane sets out the role of judges in care proceedings where they are asked to “robustly case manage” a case.

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  • 15 Jul
    Pet Custody Cases

    In the International Journal of Law Policy and the Family UK academic Deborah Rook has published an article entitled “Who gets Charlie – the emergence of pet custody disputes in family law – the adoption of theoretical tools from child law”. The article is very good and analyses the use of pseudo child law principles in determining pet custody cases in both Israel and the USA.

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  • 09 Jul
    It's a Lonely Journey

    Research on sexual abuse within the family has recently been published. The Office of the Children's Commissioner has launched an inquiry into how best to tackle the problem.

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  • 09 Jul
    Report into Child Sexual Abuse Announced

    The Deputy Children’s Commissioner for England, Sue Berelowitz, has announced a 2-year research project into sexual abuse within the family following the publication of a report by Dr Miranda Horvath and colleagues at Middlesex University.

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  • 27 Jun
    “You’re nobody special”

    In Re W [2014] EWCA Civ 405, the Court of Appeal reminded us that even guardians are fallible and that their opinions do not carry additional weight merely because they are those of a guardian. The facts of the case are set out below.

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  • 23 Jun
    Criminalisation of Forced Marriage

    Although (the clue is in the title) this blog entry refers to new criminal offences, this is certainly legislation that family practitioners should be aware of, as the government has now taken a step further to cracking down on forced marriages by making offences in the criminal, as opposed to civil arena. As the law stood prior to this date there existed only a civil remedy for breach of a forced marriage protection order, namely that set out in Part 4A in the Family Law Act 1996. This civil remedy will remain, as do forced marriage protection orders.

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  • 16 Jun
    Q v Q [2014] EWFC 7 : President Munby J adjourns private law proceedings due to Father having no access to public funds

    Most, if not all of us, predicted the frustrating consequences that would follow from the restrictions on Legal Aid imposed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.  An increased number of self-represented litigants have descended upon the family courts due to no longer qualifying for Legal Aid yet not having the funds to pay for legal representation themselves resulting in delays as many try to grapple with a system they know little about against professionals.  We have no doubt all experienced difficulty in moving matters forward in cases whereby one party is not represented through lack of legal aid and personal funds, and the frustration of Judges facing such cases.  It will therefore come to many as no surprise that in a recent Judgment, the President himself has aired his frustrations cumulating in an adjournment of proceedings.

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  • 11 Jun
    N'attendez pas le Jugement dernier. Il a lieu tous les jours.

    In Re NL(A Child)(Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam), Mrs Justice Pauffley dealt with an appeal in a complex case in which lay justices had made an interim care order with a care plan for separation. Because the case raised important issues of practice and procedure that needed to be investigated, it was almost 3 weeks after the appeal hearing had concluded that Pauffley J was finally handed down judgment.

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  • 19 May
    And still the Ministry of Justice sails on…

    Despite the Ministry of Justice, with Chris Grayling at the helm, being warned repeatedly of the consequences of cutting legal aid that would flow from LASPO (Legal Aid, Sentencing and Punishment of Offenders Act 2012) in the consultations held with, among others, legal professionals, court staff and the judiciary, they proceeded to ignore the valid concerns raised by those that work within the profession.

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  • 14 May
    Practising your Practice Directions….

    The new single family court is now up and running and whilst there was some lead in to the same, many of you will still be getting to grips with the various resultant changes.  Part of that will involve familiarising yourselves with amendments to the Family Procedure Rules which were updated to incorporate the changes, and which came into effect on 22 April 2014.

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  • 09 May
    The Not So Sad Demise of the CSA

    The Child Maintenance Scheme came into existence in 2012. This was with a view to ending CSA arrangements for the payment of child maintenance by 2017. Indeed the process of ending the CSA arrangements started in early 2014.

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  • 30 Apr
    When EPOs Go Wrong

    ​ This cautionary tale is taken from a serious case review conducted on behalf of Derby City Council following the death of a child whom the report calls DD12 (but whom I shall ‘David’).

    David was his mother’s second child. Her first baby, a girl, died suddenly in infancy as a result of SIDS. Because of the death of her first child, mother was offered a high level of support from antenatal services. She failed to engage with most of those services but, despite this, children’s services did not take any formal steps to protect David once he was born even though it was known that mother suffered from epilepsy, that father was suspected of having bipolar, and that the parents’ relationship was marred by incidents of domestic violence.

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  • 29 Apr
    The Extinction of the Expert Witness

    There is an arrogance to the governments reforms of the family courts which will have a cause and effect far beyond the cost reductions the Government is striving for. There has been nearly 200 years of expert evidence available to the family courts from psychiatrists and psychologists. This evidence has, in the main, been valuable and useful to those that have to both advise and decide on family cases.

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  • 22 Apr
    Terminating Parental Responsibility - Mission: Impossible?

    In Re D (A Child) [2014] EWCA Civ 315, the Court of Appeal (Arden, Gloster, and Ryder LJJ) considered this issue of the removal of parental responsibility. Before proceeding further, it’s important to note the courts can only terminate a father’s parental responsibility if he was not married to the mother at the time of the child’s birth and he acquired parental responsibility by virtue of section 4(1) of the Children Act 1989. That section provides that fathers acquire parental responsibility if:
    (a)    The unmarried mother and father register or re-register the child’s birth pursuant to paragraphs (a), (b), and (c) of sections 10(1) and 10A(1) of the Births and Deaths Registration Act 1953.
    (b)    The unmarried mother and father enter into a parental responsibility agreement.
    (c)    The court makes a parental responsibility order.

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  • 24 Mar
    The new Act: Change for Private Law Proceedings

    As well as the changes to shared parental leave (see Gemma White’s entry on our 12CP Barristers’ Employment Blog, 27.02.14 for more details), children in care being given the choice to stay with their foster families until they are 21, a new legal duty on schools to support children with medical conditions better, making young carers’ and parent carers’ rights to support from councils clearer, changes to protect children in cars from second hand smoke and changes to provide all children in state funded schools in Reception, Year One and Year Two with free school lunches, the Children and Families Act 2014 also introduces changes in private law proceedings, which have not received as much press attention as the other proposed changes.  Although perhaps not as headline grabbing as our Deputy Prime Minister’s plan to reform children’s health with three years of healthy (ahem) school dinners, these changes are important ones for practitioners and lay parties alike.

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  • 20 Mar
    Hearing Impairment and Public Law Children Act Proceedings

    The Court of Appeal has recently given guidance on the treatment of parties to care proceedings who have impaired hearing. Re C (A Child) Court of Appeal 21.1.14 was a judgement by Lord Justices Rimer, McFarlane and Vos in a child care case where the mother suffered from cognitive and learning disabilities and some hearing impairment; and the father was profoundly deaf. The case follows on from the judgment of Baker J in Wiltshire Council v N 2013 EWHC Civ 3502.

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  • 19 Mar
    Protocol and Good Practice model: Disclosure of Information in Cases of Alleged child abuse

    Many care cases involve concurrent investigation by the police. The stakes for the parents are often high. They are being interviewed by the police in relation to serious crimes: sexual and physical abuse and sometimes murder. They also stand to lose the care of their children. If one is the perpetrator of the abuse, what knowledge did the other have, and what did they do or should have done?

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  • 17 Mar
    Clare's Law - the Domestic Violence Disclosure Scheme is implemented on Women's Day 8 March 2014

    Domestic Violence is a big problem.  It is indiscriminate; any woman or man can become a victim of domestic violence just as perpetrators of the same come in many guises.  As such it is incredibly hard not only for people to spot when someone is a victim, but also for people to avoid relationships with those who may have a history of such behaviour.

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  • 07 Mar
    Prenuptial agreements – the way forward

    Following on from my blog post on the 4th February 2014 describing the imminent publication of the Law Commission report on pre nuptial agreements the report has now arrived. The document which was originally commissioned in 2009 and superseded by the decision in Radmacher v Granitino 2010, recommends that there is legislation to address the issue of whether parties to a divorce or dissolution of a civil partnership can be bound by a prenuptial agreement.

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  • 28 Feb
    The Law Commission reports on “financial needs”

    A report has been published by the Law Commission which comments on the meaning of “financial needs” in financial remedy cases. The report – which contains submissions from a number of interested parties and organisations – concludes that there should be centralised guidance as to the meaning of needs.

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  • 25 Feb
    European Nationals in UK Family Proceedings - some clarification.

    Those of you who read the many newspaper and other media reports about Alessandra Pacchieri, the Italian national whose baby (identified in the reports as P) was taken into care by Essex County Council following a caesarean section while she was detained under the Mental Health Act 1983, might recall that certain commentators got very exercised by the fact that P was/might be an Italian national and yet it was the English courts that were making decisions about his future (even if that meant overlooking the inconvenient fact that P had never been to Italy). The same commentators were also very exercised by the fact that, so they maintained, the Italian consular authorities in the UK were not informed about either Ms Pacchieri’s detention in a mental hospital or the public law proceedings about P.

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  • 17 Feb
    Blunt Instrument

    The other day I attended Court to retimetable a care case because an expert advised a further assessment was needed. There had been some delay in acting on the advice and the Issues Resolution Hearing (“IRH”) would have to be shifted and the 26 weeks exceeded. At Court the Local Authority, perhaps anticipating judicial criticism, revised the time needed for its final evidence and the IRH and 26 weeks were retained. The Judge commented that she wished all the cases in the list were as straightforward as ours but that it was a shame we had all come to Court when a consent Order could have been filed. The retort that her list would be very dull if her wish were fulfilled produced a wry smile.

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  • 14 Feb
    Dispelling the Myths

    Against the background of the controversy about “forced adoptions”, adoption quotas being used by social services departments, as well as the allegedly secretive and underhand conduct of the family courts a new website has appeared.

    www.childprotectionresource.org.uk

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  • 11 Feb
    Are there drawbacks to transparency in the Family Court and the Court of Protection?

    A few weeks ago Zosia Keniston wrote a blog about the move towards greater openness in the Family Court. I think there is a case to be put for the retention of privacy in order to protect the parents, couples, grandparents and children whose lives are played out before the Family Courts.

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  • 06 Feb
    Split hearings – Ryder LJ clarifies the guidance and opines on the term “non-accidental injury”

    The President’s Guidance on split hearings (May 2010) has now been augmented by Ryder LJ’s guidance on split hearings within public law proceedings in the recent case of: Re S (A Child) [2014] EWCA Civ 25, which considered the appropriate use of split hearings within public law proceedings. This case assists, as sets out clearly the criteria that need to be met.

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  • 04 Feb
    Prenuptial agreements - legislation at last

    The Times has reported that the Law Commission will publish a report later this month on new legislation in respect of pre nuptial agreements. The report will contain a draft bill which will receive cross party support.

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  • 27 Jan
    An Immediate Change for the Family Courts

    Kicking off the blog topically, as blogs themselves are a media publication, with a brief overview of the new guidance just handed down by the President of the Family Division, Sir James Munby, concerning transparency in the family courts.

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  • 23 Jan
    Welcome to the 12CP Barristers' Family Blog

    Welcome to the 12CP Family Blog. We intend to provide our readers with posts commenting on topical and landmark cases, covering all aspects of family law, to include matrimonial finance, divorce, Children Act matters, as well as providing updates on the court system, guidance on reporting, publication, not to mention the Government’s latest plans to deal with legal aid fees…

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