Tuesday, May 03, 2016

Defences against drink driving in England and Wales

There are often news stories about celebrities getting into trouble with the law, but the past few weeks have seen the drink driving charge laid against England rugby star Danny Cipriani unfold. In the latest development, his application to have the case thrown out of court due to a faulty breathalyser test was dismissed.

In light of this recent legal battle, today’s post will centre around the various defences that can be put against such a charge, and the evidence needed to support them.

Defence on grounds of equipment

It is always possible that a machine cannot be proven as being accurate and as such it is always possible to challenge a reading in court that you feel is faulty. If you think that you have not consumed sufficient alcohol to result in the reading produced, a specialist solicitor will be able to put forward this as a case for you.

In the case of Danny Cipriani, the District Judge dismissed a submission by the defence of no case to answer but that does not mean that the prosecution has proven its case and the trial continues. If your solicitor takes issue with the accuracy of an evidential reading, it is up to the prosecution to prove its reliability. You can also provide evidence in your defence, such as expert witnesses and those who were with you before you were arrested. CCTV of the room where the evidential machine was operated is often made available.

Defence on medical grounds

A defence can be made if you feel that you have been accused wrongly due to a medical condition. For example, at the time of giving a breathalyser test, did you have a lung or chest condition that may have prevented you from blowing properly into the machine?

This may have been charged as a failure to provide specimen but if there is a reasonable excuse for the failure this should be supported with an independent medical report.

Defence on grounds of error

If the procedure for obtaining specimens has not been followed correctly in accordance with the law this will result in an acquittal. The procedures for obtaining bodily specimens from hospital patients are more complicated than at the police station which means that the scope for arguing procedural error is usually greater.

In all of these cases, the key to being acquitted of a drink driving accusation which you feel you have been wrongly charged with, is gaining expert legal help and guidance. With 25 years’ experience and over 300 cases acquitted since 2012, Kenway Miller, the drink driving solicitors, have plenty of case studies online for you to what they have come up against and successfully won. They also have significant experience with all of these defences in particular and will be able to advise you on how to go about progressing your case.

News Essentials: 3rd May 2016

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

Legal Aid Agency changes standard cost limits in family law cases
Substantive certificates for family work issued after 1 May 2016 will have a £5,000 cost limitation as standard, the Legal Aid Agency has announced. Full story: Family Law Week.

Child Maintenance Service’s caseload rose by 21% in 3 months to February 2016
88% of money due has been paid under the 2012 scheme. Full story: Family Law Week.

Police pensions: transfer values and pension sharing on divorce
Addenda to scheme guidance published. Full story: Family Law Week.

FGM toolkit for family lawyers launched
At its annual conference in Gateshead, family law organisation Resolution has published a new screening toolkit on Female Genital Mutilation (FGM). Full story: Resolution.

Woman who died after 'losing sparkle' cannot be named, court rules
Court of protection declines to name 50-year-old who died after refusing life-saving kidney treatment. Full story: The Guardian. See V v Associated Newspapers Ltd and Others, below.

K v K (Financial Remedy Final Order prior to Decree Nisi) [2016] EWFC 23 (28 April 2016)
Applications by wife to enforce and by husband for permission to appeal financial remedies order. Full report: Bailii.

TM v AH [2016] EWHC 572 (Fam) (04 March 2016)
Application by wife to join trustees of two trusts to the litigation. Full report: Bailii.

Aziz v Aziz [2016] EWHC 973 (Fam) (07 April 2016)
Case management hearing in high value financial remedies case. Full report: Bailii.

V v Associated Newspapers Ltd and Others [2016] EWCOP 21
Application for a reporting restrictions order extending beyond the period of the reporting restrictions order granted at the first hearing for directions in the case. Full report: Family Law.

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For more news, see here.

For more cases, see here.

To subscribe to the Family Lore Focus free weekly Newsletter (which includes links to all of the week's top family law news stories, cases, articles and blog posts), go here.

Friday, April 29, 2016

Pressing the case for no fault divorce, and more...

My posts this week on Marilyn Stowe’s Family Law & Divorce Blog began with the hope that we might persuade the government to bring in a divorce system where neither party has to point the finger of blame, and ended with examples of how previous government policies have not been so productive:

What do we have to do to get the message across about no fault divorce? - Why it need to happen...

Further thoughts on putting the case for no fault divorce - ...and a couple of ideas that might help it happen.

The facts behind the reduction in the number of law firms - Why it is happening, and what it means for the public.

Smoke and mirrors from the government on child maintenance - Or, how to cover up an embarrassing problem.

Have a good May Day bank holiday weekend.

Monday, April 25, 2016

News Essentials: 25th April 2016

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

New Resolution chair aims for no fault divorce
New Resolution national chair Nigel Shepherd used his first speech in the role to issue a rallying cry for family lawyers to continue to call for no fault divorce. Full story: Family Law,

Muslim man loses high court bid to have sons circumcised
Father went to court after mother of the boys, aged four and six, objected to the procedure at a young age. Full story: The Guardian, See law report, below.

Court takes stand against 'divorce tourism' in case of millionaire barrister and artist ex-wife
An Appeal Court judge has taken a stand on so-called "divorce tourism" in a dispute between a millionaire QC and his former wife who agreed a settlement in Australia. Full story: The Telegraph,

Senior childcare lawyer warns of pressures from “remorseless” rise in cases
A significant rise in public law children cases is putting more pressure on social workers and child care lawyers, all of whom are experiencing significant budgetary cutbacks, a senior local authority lawyer has warned. Full story: Local Government Lawyer,

I (A Child), Re [2016] EWHC 910 (Fam) (18 April 2016)
Care proceedings relating to 15 year old boy. Judgment concerning whether information he imparted to a social worker should be disclosed to the other parties by the local authority. Full report: Bailii.

Spencer v Anderson (Paternity Testing: Jurisdiction) [2016] EWHC 851 (Fam) (15 April 2016)
Proceedings raising the issue of whether the Court can direct scientific testing of the DNA of a person who has died for the purpose of providing evidence of paternity. Full report: Bailii.

L And B (Children : Specific Issues : temporary Leave To Remove From the Jurisdiction; Circumcision) [2016] EWHC 849 (Fam) (05 April 2016)
Applications by father of two children in relation to the amount of time they should spend with each parent, whether he should be permitted to remove the children from the jurisdiction for the general purposes of foreign travel and whether it is in the children's best interests to allow them to be circumcised. 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 (which includes links to all of the week's top family law news stories, cases, articles and blog posts), go here.

Saturday, April 23, 2016

FGM toolkit for family lawyers launched

At its annual conference in Gateshead, family law organisation Resolution has published a new screening toolkit on Female Genital Mutilation (FGM) in response to new laws designed to protect victims of FGM, so that members are better equipped to identify and support vulnerable girls and women.

Despite FGM being a criminal offence in the UK since 1985, it’s believed there are up to 23,000 girls under 15 at risk of FGM in England and Wales, and nearly 60,000 women potentially living with the consequences of FGM.

The Resolution toolkit aims to support family lawyers in raising the issue of FGM with their clients. It tells its members a ‘potential victim may only have one chance to ask for help’ and identifies key questions and issues to discuss in order to help victims access the dedicated support services available.

Speaking at the Resolution National Conference, the organisation’s new chair, Nigel Shepherd, said:

“Resolution members can play an important role in supporting victims of FGM. This toolkit is a valuable addition to the many resources we make available to our members to support them across a range of issues of concern to their clients, including guidance on how to help victims of abuse and forced marriage."

Cris McCurley, from Resolution’s Domestic Abuse Committee, who produced the toolkit, said:

“Sadly there are still thousands of women and girls in the UK who are at risk of FGM. Family lawyers can often be the only person FGM victims feel able to discuss their injuries with.
“In my experience, you never know when a disclosure of FGM might happen, so the toolkit is something I’d urge all family practitioners to have to hand, whether or not they consider themselves people who deal with issues around FGM.

"We may only have one chance to help so it’s vital that we’re prepared and I’m delighted that Resolution is supporting our members to do so with the publication of this toolkit."
FGM is usually arranged through the woman or girl’s parents or extended family. Some of the reasons given for the continued practice of FGM include the protection of family honour, preservation of tradition, ensuring a woman’s chastity, cleanliness and as a preparation for marriage.

According to the Home Office, the UK communities that are most at risk of FGM include Kenyan, Somali, Sudanese, Sierra Leonean, Egyptian, Nigerian and Eritrean. Non-African communities that practise FGM include Yemeni, Afghani, Kurdish, Indonesian and Pakistani.

Friday, April 22, 2016

New Resolution chair aims for No Fault Divorce

Nigel Shepherd
New Resolution national chair Nigel Shepherd used his first speech in the role to issue a rallying cry for family lawyers to continue to call for no fault divorce.

Speaking in front of 400 family lawyers at Resolution’s annual conference in Gateshead, Mr Shepherd said “it’s wrong – and actually bordering on cruel – to say to couples: if you want to move on with your lives…. one of you has to blame the other”.

It is the latest in a growing number of calls from Resolution, who represent 6,500 family lawyers in England and Wales, for reform to divorce law to allow for no fault divorce. Earlier this year Resolution’s outgoing chair Jo Edwards wrote to the Prime Minister asking for a commitment towards no fault divorce to be made in the upcoming Queen’s Speech.

Mr Shepherd pointed to recent polling by Resolution that found a quarter of all divorcing couples falsify blame on their petition in order to complete the separation, and said Resolution and its members would continue to press Government ministers on the case for change. He said: “The blame game needs to end, and it needs to end now. We will continue to make the case to Government, supported by charities, the judiciary and the many others who support no fault divorce”.

He further signalled his intention to be an active challenger of the Government by labelling the current legal aid system “a bloody disgrace” and said, to the applause of the conference, that the Government must carry out its review into the impact of LASPO at the earliest possible opportunity.

Mr Shepherd, who was previously Chair of Resolution in 1997, also paid tribute to Resolution’s members and their commitment to reducing family conflict and helping parents to put their children first. He said that he was “proud of the work our members do to protect the vulnerable and abused”.

Jo Edwards, the outgoing Chair of Resolution, received special praise for the achievements of her two years in post. Ms Edwards, he said, had taken Resolution from “strength to strength” and been a great ambassador for the organisation and for family justice.

The Resolution conference is an annual two-day event for its members to come together and discuss the latest developments in family law and identify practical ways to support people going through separation.

Naming children, ill thought-out legal aid reforms and more...

My posts this week on Marilyn Stowe’s Family Law & Divorce Blog included a look at three different but interesting cases, and confirmation of what we already knew about the government's legal aid reforms:

The labyrinthine technicalities surrounding a child’s name - Lady Justice King treads a route through the legislative maze in the "Preacher and Cyanide" case C (Children).

A Court of Protection case for our times - Re Z & Ors.

The Supreme Court decision proves what we already knew about the legal aid reforms - Michael Gove's proposed residence test was ill thought-out.

Court authorises DNA test of deceased person - My take on the case Spencer v Anderson (written, incidentally, before I had seen anyone else's post on it).

Have a good weekend.

Thursday, April 21, 2016

Either lawyers are regulated, or they aren't

No MFs here...

As I commented elsewhere just the other day, when the government abolished legal aid for most private law family matters in 2013 it essentially offered nothing in its place. OK, it did try to patch up the gaping wound with the sticking plaster of mediation, but that policy has failed, as many of us knew it would. It also offered an even smaller plaster in the form of money for advice providers, but the amount was so little as to have no noticeable effect upon the patient.

Obviously, most people with a legal problem would like to have some advice and assistance in dealing with the problem. Equally obviously, if the less well-off in society are denied access to professional lawyers, then they will look elsewhere for legal help. Hence, since 2013 there has been a significant increase in the number of people outside the profession who are offering their services to those who would have previously had legal aid, in particular McKenzie friends.

Now, before I proceed I want to emphasise something that I have said on a number of occasions previously: there are clearly some very good McKenzie friends out there, helping those in need (and, indeed, the courts). This has been acknowledged by the judiciary. I also obviously accept that there is a desperate need for legal help and assistance for those who can't afford a lawyer.

However, there is an elephant in the room.

Professional lawyers are required to be trained, are strictly regulated and are required to have professional indemnity insurance. We must ask the simple question: why are they subject to these requirements? The answer, of course, is equally simple: to protect the public. The requirements ensure, so far as possible, that professional lawyers know what they are doing, that they follow certain standards, and that their clients do not suffer loss if things go wrong.

Those who offer legal services from outside of the profession are not subject to these requirements, and yet they can offer a very similar service to professional lawyers. What we seem to be saying, therefore, is that the better off members of the public who can afford a lawyer deserve protection, but the less well-off do not.

That cannot be right: either the public requires protection or it doesn't; either lawyers are all regulated, or they are not. If lawyers can do the job without the enormous investment of time and money required by regulation, then why bother getting qualified, complying with rules and paying for insurance? If no one really cares about whether or not the public are protected, then let's just scrap all the regulation, and have a free-for-all.

We really need to decide: should the public be protected from the possibility that they may suffer serious loss from charlatans posing as lawyers/legal advisers, or not?

The legal profession is often compared to the medical profession, which is subject to a similar level of strict regulation. Would we ever contemplate doing away with regulation of the medical profession? Of course we wouldn't - what the medical profession deals with is too important. Now, the work of the legal profession is not usually a matter of life and death (but it can happen), so I am obviously prepared to accept that the same level of protection for the public may not be required when it comes to lawyers. However, lawyers do deal with extremely serious matters, that are of the utmost importance to their clients. Family lawyers, for instance, deal with matters relating to arrangements for children, distribution of assets on divorce and even where the parties should live. Are we to say that such matters are so trivial that the public don't need protection from the charlatans?

The idea for this post arose from an email I received from Nicola Ingram, who practises as a paid McKenzie friend. She has written a post of her own, commenting upon the Judicial Executive Board's recent consultation paper proposing reforms to the Practice Guidance on McKenzie friends. She asked me to either share her post (which I have now done) or give my opinion upon it. I have, in fact, already commented upon the consultation here. Apart from what I have said there and above, I haven't really got any more to add, save that I would take issue with Nicola's assertion that the recent closure of several solicitors' practices by the SRA is an indication that regulation does not work: surely, it is the opposite - an indicator that regulation can weed out the bad apples, to protect the public from them in future.

Monday, April 18, 2016

News Essentials: 18th April 2016

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

68% of local authorities show a year-on-year increase in the rate of care applications
Cafcass have today released statistics showing the number of care applications received per 10,000 child population – the rate of care applications – by each local authority in England during 2015-16. Full story: Family Law.

Powys mum banned from naming daughter Cyanide by court
A mother has been banned from naming her baby Cyanide after the poison which Adolf Hitler took before shooting himself. Full story: BBC News. See C (Children), below.

Supreme Court rejects attenuated welfare test: Re N (Children) [2016] UKSC 15
Re N (Children) [2016] UKSC 15 unanimously allowed the appeal from an order transferring the care proceedings pursuant to Art 15 of Brussels IIa. Full story: Family Law. See law report below.

Cafcass private law demand
In March 2016, Cafcass received a total of 3,287 new private law cases.  This is a 4% increase on March 2015 levels. Full story: Cafcass.

Care applications in March 2016
In March 2016, Cafcass received a total of 1,221 care applications.  This figure represents a 14% increase compared to those received in March 2015. Full story: Cafcass.

Deprivation of liberty court cases triple but fall short of Cheshire West predictions
Ministry of Justice figures reveal 1,499 deprivation of liberty cases reached Court of Protection last year, up from 525 in 2014. Full story: Community Care.

112,000 private law applications but fewer than 5,000 MIAMs in 2014/15
National Family Mediation unearths figures through Freedom of Information request. Full story: Family Law Hub.

C (Children) [2016] EWCA Civ 374 (14 April 2016)
Appeal by mother against order preventing her from registering children's names of her choice. Appeal dismissed. Full report: Bailii.

Mutch v Mutch [2016] EWCA Civ 370 (13 April 2016)
Appeal against order setting aside order varying periodical payments order. Appeal allowed. Full report: Bailii.

N (Children), Re [2016] UKSC 15 (13 April 2016)
Appeal against order for transfer of care proceedings relating to two children born in England to Hungarian parents, to Hungary. Appeal allowed. Full report: Bailii.

E-R (Child Arrangements) [2016] EWHC 805 (Fam) (08 April 2016)
Re-hearing of cross-applications by father and family friends for child arrangement orders in respect of child whose mother had died. Full report: Bailii.

I, Re (Human Fertilisation And Embryology Act 2008) [2016] EWHC 791 (Fam) (12 April 2016)
Application by partner of mother of child born as a result of IVF treatment for a declaration that he is the child's legal parent. 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 (which includes links to all of the week's top family law news stories, cases, articles and blog posts), go here.

Friday, April 15, 2016

An online court, an observatory and more...

The topics covered by my posts this week on Marilyn Stowe’s Family Law & Divorce Blog included further evidence of the scope of the issues faced by our family courts, a concern about the proposed online court, the proposed 'family justice observatory' and the thorny issue of costs in children cases:

Two anorexia judgments demonstrate scope of family casesRe W (Medical Treatment: Anorexia) and Re Z (Recognition of Foreign Order).

Is excluding lawyers a design goal of the online court? - Or, should lawyers lose sleep over the online court?

What on Earth is a ‘family justice observatory’? - I hack my way through the jungle of jargon, searching for the answer.

The delicate issue of costs in children cases - As illustrated by the case E-R (Child Arrangements).

Have a good weekend.