Wednesday, October 07, 2015

J (Children): No contempt when impossible to fulfil order

Lady Justice Black
A brief summary of the Court of Appeal judgment in J (Children) [2015] EWCA Civ 1019, handed down today.

This is, hopefully, the final judgment in the long-running child abduction saga of the mother who brought the children to Wales, failed to comply with an order to return them to Spain, and then, as widely reported in the newspapers at the time, absconded with the children before the police could enforce a collection order. To cut a long story short (if you want the details, see the earlier judgments, referred to in this judgment), the case finally revolved around two of the children, now aged 17 and 15, who remained with the mother and refused to return to Spain. In August 2013 the President ordered the mother to return the children. This did not happen, and the father applied for the mother's committal. The committal application went before the President, who gave judgment on the 9th of July 2014. He refused the application because, in his judgment, the father was required to prove to the criminal standard of proof that the mother could have ensured compliance with the orders and he had not achieved this. The father appealed to the Court of Appeal.

Giving the leading judgment Lady Justice Black essentially followed the President's reasoning:
"As I shall now explain, my conclusion that the appeal should be dismissed emanates from the particular circumstances of the case and I have not therefore felt myself compelled to determine the rights and wrongs of [counsel for the father's] arguments. In my judgment, it is necessary to look at the making of the orders against the mother in August 2013 and the father's application for the committal of the mother for contempt as a whole. This was not a case in which the possibility of compliance with the proposed order was investigated before the order was made, in the sort of depth that it might have been in a civil case, or even perhaps in another type of family case. The President decided to exercise his discretion by making orders despite the acknowledged risk that the children would frustrate them. His recognition of the potential impossibility of compliance is clear not only from what he said in his August 2013 judgment but also from his inclusion in the order of alternative dates for the return of the children ... It follows that, in making the order in the face of the risk that it would be impossible for the mother to fulfil it, he would have proceeded upon the basis that no finding of contempt could be made against her unless it was established to the criminal standard of proof that it was within her power to do what was required."
She continued:
"When it came, later, in the context of the contempt application, to a closer examination of whether fulfilment of the orders was possible, the President found that [the child] was clear, settled and determined in her long-held views and found that the father had fallen "well short" of establishing to the criminal standard that the mother could have achieved the return of the children to Spain"
Lord Justice Floyd and Lord Justice Sullivan gave concurring judgments.

Monday, October 05, 2015

News Essentials: 5th October 2015

A brief summary of the essential family law news and cases from the last week:

Children looked after in England including adoption: 2014 to 2015
Statistics on looked-after children at both national and local authority levels for the financial year 2014 to 2015. Full story: Department for Education.

The law on press reporting of ancillary relief proceedings is ‘a mess’: Mostyn J
Permission given to appeal to resolve the ‘unhappy divergence of judicial approach’. Full story: Family Law Week - see Appleton & Anor v News Group Newspapers Ltd & Anor, below.

Judge rejects call to give life-saving treatment against opposition of patient
A Court of Protection judge has ruled that it would be unlawful for an NHS trust to carry out life-saving treatment against the patient’s opposition. Full story: Local Government Lawyer - see Wye Valley NHS Trust v B, below.

BR v VT [2015] EWHC 2727 (Fam) (02 October 2015)
Application by husband for interim order for sale of matrimonial home, in course of financial remedy proceedings. Full report: Bailii.

B, Re [2015] EWHC 2735 (Fam) (24 July 2015)
Private law proceedings concerning where child should go to school and how much time he should spend with each parent. Full report: Bailii.

Wye Valley NHS Trust -v- Mr B (by his litigation friend, the Official Solicitor) [2015] EWHC 60 (COP) (28 September 2015)
Judgment considering whether it is lawful for the doctors treating a 73-year-old gentleman with a severely infected leg, to amputate his foot against his wishes in order to save his life. Full report: Bailii.

Q (A Child), Re [2015] EWCA Civ 991 (29 September 2015)
Appeal by father against order for assessment of child, in long-running contact dispute. Appeal dismissed. Full report: Bailii.

C (A Child), Re [2015] EWFC 79 (29 September 2015)
Application by expert for disclosure of documents from care proceedings. Application dismissed. Full report: Bailii.

Nicole Appleton and Liam Gallagher -v- (1) News Group Newspapers Ltd, (2) the Press Association [2015] EWHC 2689 (FAM) (28 September 2015)
Judgment concerning continuation of reporting restriction order in financial remedy proceedings. Full report: Bailii.

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For more news, see here.

For more cases, see here.

To subscribe to the Family Lore Focus free weekly Newsletter, go here.

Monday, September 28, 2015

News Essentials: 28th September 2015

A brief summary of the essential family law news and cases from the last week:

Mediation starts in the last quarter up by a third
Legal aid statistics published for April to June 2015. Full story: Family Law Week.

Family court statistics published for second quarter of 2015
The Ministry of Justice has published its most recent statistical bulletin presenting statistics relating to family courts. Full story: Family Law.

Lord Bach to lead review into Legal Aid
Lord Falconer, Labour’s Shadow Lord Chancellor and Shadow Justice Secretary, today announced that Labour has appointed Lord (Willy) Bach to carry out an immediate review into legal aid. Full story: Family Law.

Police given advice on spotting domestic abuse patterns
Police officers will receive specialist advice on how to spot patterns of domestic abuse under new guidance. Full story: BBC News.

'Foster children harmed by frequent moves'
Vulnerable children are too often shuttled between foster homes, harming them further, says a charity. Full story: BBC News.

Re NRA and Ors [2015] EWCOP 59 (25 September 2015)
Ten cases seeking welfare orders under s. 16(2)(a) MCA, to authorise deprivation of liberty created by the implementation of care package upon which the welfare orders are based. Full report: Family Law.

T (A Child : Early Permanence Placement) [2015] EWCA Civ 983 (24 September 2015)
Appeal in care proceedings, in which local authority abandoned its plan for adoption in favour of a placement with the paternal grandparents under a special guardianship order. Full report: Bailii.

Dad, Re [2015] EWHC 2655 (Fam) (15 September 2015)
Application to commit father for breach of collection order. Full report: Bailii.

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For more news, see here.

For more cases, see here.

To subscribe to the Family Lore Focus free weekly Newsletter, go here.

Friday, September 25, 2015

The show must go on

Continuing to battle manfully against the noise, stress and general aggravation of having a new kitchen fitted, I once again managed to get some posts written for Marilyn Stowe’s Family Law & Divorce Blog this week, including:

Publicity v privacy in financial remedy cases - A few thoughts of my own to add to the current debate.

Privacy in the internet age - The problems faced by Mr Justice MacDonald in  H v A (No 2).

The police response to domestic violence - Looking at the new domestic abuse guidance for the police.

When a court order is not complied with - Looking at two contrasting committal judgments published this week, Re Dad and Cheltenham Borough Council v Nield.

Have a good weekend.

Friday, September 18, 2015

Book Review: Good Practice in Child Care Cases, 3rd Edition

Good Practice in Child Care Cases, 3rd Edition

£39.95 – Published by Law Society Publishing: August 2015

There are undoubtedly benefits of working from home. However, there are also downsides. One of which is that it is extremely difficult to concentrate when work is being done (in this case, a complete new kitchen) in the room next door, including power cuts and other inconveniences. I had intended to leave this review until the work was done, but as it is now clear that the work is likely to take rather longer than originally anticipated, I thought I would go ahead now, albeit in a much briefer form, particularly as the EPUB version of this book is due for publication next week.

I have, of course, previously reviewed the 2nd edition of Good Practice in Child Care Cases (it seems remarkable that nearly five years have elapsed since then), so I would refer the reader to that for an explanation of what this volume is about, rather than repeating myself. (In short, to quote the cover blurb, the book is "a concise guide to best practice for solicitors acting in public law Children Act cases, whether they are acting for a local authority, parent, or a child".)

So, what is new about the 3rd edition? At first glance, not a lot. The two volumes are of almost identical length, and the contents of each are similar, with the newer edition having an extra chapter on legal aid and costs information, but fewer appendices. As to the latter, we of course now have the updated PLO (contained in PD 12A) and the CAP (PD 12B).

Looking a little deeper I have, in the short time available to me, attempted to compare the main text of the two editions. It has not been possible to compare word for word (a task I wouldn't have undertaken even if I had had the time!), so I have just picked a few sections at random. The clear impression from this exercise is that the text, even if not revised, has been subjected to a thorough review, to reflect the many changes that have affected child care work over the last five years. The new edition may look like the old, but it is very different 'under the hood'.

As Sir James Munby points out in the foreword, Good Practice in Child Care Cases is a supplement to the Law Society's Family Law Protocol, the fourth edition of which is due to be published on the 30th of October. Clearly, just as the Protocol is an essential fixture on the bookshelves of all family lawyers, Good Practice in Child Care Cases is also essential for child care practitioners.

Good Practice in Child Care Cases is available from the Law Society bookshop, in either hardcopy (paperback) or (from the 23rd of September) EPUB form.

Cooking with gas

Despite the noise, stress and general aggravation of having a new kitchen fitted, I managed to get some posts written for Marilyn Stowe’s Family Law & Divorce Blog this week, including:

A peek at the work of a family court judge - Via 13 published judgments of Her Honour Judge Moir.

Can pro bono fill the legal aid gap? - Read the post for the answer.

Can family law be mechanised? - Or, to put it another way, are robotic family lawyers the future of family law?

When involved in court proceedings, don’t be difficult - Lessons from the recent cases Welch v Welch and DL v SL.

Have a good weekend.

Monday, September 14, 2015

FREE Family law session open to all - find out how the Family Court works

Family Law and HHJ Stephen Wildblood QC
Thursday, 1 October 2015 from 16:30 to 18:00 (BST)
Bristol, United Kingdom

Event Details

What does the Family Court do? ... This is your chance to find out.

Join His Honour Judge Stephen Wildblood QC, designated family judge for the Bristol area, and a panel of legal experts to hear about how the Family Court works, what to expect and where to get helpful information.

Find out what the Family Court does, what it's like going to Court and what to expect in terms of: paper work, giving evidence and the hearing process in general.

Get information about Legal Aid, the support available when you attend Court by yourself and alternatives to the Court process.

This will be an opportunity for you to come to the court building and ask questions about the practice of the Family Court.*

Who should attend?
  • Anyone interested in finding out more about the Family Court
  • All professionals in the field of family law
  • Journalists
  • Students 

Other materials covered
  • What are Private Law Orders and upon what basis are they decided? 
  • Public Law Orders (Supervision, Care, Placement and other Orders)
  • Civil Partnership and Divorcing Couples
  • Who decides on Cases?
  • What happens after a case? 

The panel
  • HHJ Stephen Wildblood QC
  • Louise Tickle, Journalist
  • Judi Evans, Barrister, St John's Chambers
  • Zahid Hussain, Barrister, St John's Chambers
  • Emma Whewell, Senior Lecturer in Law, UWE

Numbers are limited so book here as soon as possible to avoid disappointment.

*Please note that individual cases will not be discussed.

Friday, September 11, 2015

Internet Newsletter for Lawyers September/October 2015

The latest issue of the Internet Newsletter for Lawyers is now published.

In this issue
  • Can ODR deliver better access to justice?
  • The intellectual property revolution
  • Getting the best from GOV.UK
  • Introducing eDisclosure and eSignatures
  • Free case law resources online
  • Five free (or low cost) digital marketing tools
  • What is the Deep Web?
  • New Internet for Lawyers courses from Nick and Delia
Access the Newsletter online