Friday, March 24, 2017

"Do your kids a favor – don’t have any."


It could have been a quote from a family lawyer, but it is actually by American Comedy writer Robert Orben. It seemed apt in relation to my posts this week on Marilyn Stowe’s Family Law & Divorce Blog, which were all about children, primarily the problems that their parents (in the widest sense) can cause them:

Convicted father precluded from having contact with his children - The case ZX, R (on the application of) v The Secretary of State for Justice.

Family law and the ‘non-conventional’ family - As in Re B.

Child benefit and the ending of child support liability - The case DJ v Secretary of State for Work and Pensions and TJ (CSM) (Child support - receipt of benefit).

Can a parent be forced to have contact? - I answer the oft-asked question.

Have a good weekend.

Thursday, March 23, 2017

Family court transparency plans fall short as judges struggle to find time to publish judgments safely

New research from Cardiff University’s School of Law and Politics suggests that guidance given to judges to routinely publish their judgments is not being consistently followed, leaving the public with a patchy understanding of the family justice system in England and Wales. 

Issued in 2014, the guidance was intended to address perceptions, especially in the media, of ‘secrecy’ and ‘justice behind closed doors’ when important decisions are made about children in family courts. These claims arise from the way that court rules ensure most family cases are held in private, to protect children and other vulnerable parties, and are subject to reporting restrictions preventing such parties being identified.

The guidance requires judges to send fully anonymised versions of their judgments in certain types of case to BAILII, a freely accessible legal research website. The intention was to enable both the press and the public to have a better understanding of the family justice system, by making it more transparent.

However, following concerns expressed about poor anonymisation and some risks of jigsaw identification, and also observations that relatively few cases seemed to be appearing on BAILII, an evaluation of the effects of the guidance was undertaken by Cardiff University’s School of Law and Politics, funded by the Nuffield Foundation.

Analysing 837 judgments that were published in the first two years following the guidance, the research found that only 27 judges and 12 courts sent in more than ten cases each to BAILII during this period, revealing significant local variations in following the guidance. As a result, the media and the public are able to read more about judicial and social work decision making in certain parts of England and Wales than others.

Dr Julie Doughty, Cardiff University’s School of Law and Politics, who led the research said: “The judgments now published provide more information about the role of the family courts than was available prior to the guidance, but there are inconsistences in the way courts have responded which can present a confusing and not necessarily representative picture of the system as a whole.”

The research team also gathered views from some judges, journalists, organisations and representative groups with an interest in family justice, about the operation of the guidance and the effect it has had on them and on public understanding of family courts.

Dr Doughty added: “The overwhelming message we received in this study was that judges’ workloads, and lack of administrative support, did not allow them the time they needed to write clear, useful and safely anonymised judgments for publication that they could feel confident had minimised any risk of identifying the children and families involved.”    

The publication of this report is timely, in the context of a senior family court judge recently emphasising the importance of public legal education and making family court processes more transparent, thereby reducing complexity and time spent on cases at later stages, as well as improving access to justice.

The report, Transparency through publication of family court judgments: An evaluation of the responses to, and effects of, judicial guidance on publishing family court judgments involving children and young people, by Julie Doughty, Alice Twaite and Paul Magrath, is available to read in full here.

Wednesday, March 22, 2017

Resolution welcomes Justice Select Committee report on the implications of Brexit for the justice system


Daniel Eames, Chair of Resolution’s International Committee, gave oral evidence to the Justice Select Committee and welcomed the recommendations made in the report. He said:

“Resolution is pleased to see the Justice Select Committee have taken on board many of the points we made during their inquiry. MPs have listened to the legal profession and recognised that the vision put forward in the Government’s white paper won’t work for British families.

“Incorporating EU law into domestic legislation on its own won’t work as we need to have reciprocity and cross border recognition. Without reciprocal rules, there can be no legal certainty in outcomes with all the ensuing complications, delays and potential costs for families and children. There must also be suitable transitional provisions in case not all negotiations are concluded before the UK has formally left the EU.

“We accept that family law will not be the highest priority for this Government during the Brexit negotiations. However, for the thousands of UK citizens that are married and living overseas, and EU citizens that are married and living in the UK, issues concerning cross-border family law will be of critical importance should their relationship come to an end.

“We therefore urge the Government to take the Justice Select Committee recommendations on board and provide much needed confidence and certainty for families and children as Britain leaves the European Union”.

Monday, March 20, 2017

Families need government to shake off policy paralysis, says national family charity

Another ‘Groundhog Day’ family policy report

A national charity is urging Ministers to address the ‘Groundhog Day’ of government inaction that greets the publication of family policy research. But National Family Mediation (NFM) fears the dominance of Brexit in government thinking could simply lead to further stalling.

The charity says a recent Social Mobility Commission report, ‘Helping parents to parent’ is just the latest in a string of reports and research over recent years which reach similar conclusions about the need to reform family policy - to bring better outcomes for families and to save taxpayers’ money.

NFM’s Chief Executive Jane Robey says action on report findings are hardly ever acted upon and fears that in light of Brexit, a ‘policy paralysis’ has gripped the government.

“Brexit understandably dictates government thinking. But the divorce we face from the EU mustn’t blind Ministers to the wide-ranging benefits of well-managed family divorces in achieving better outcomes for families,” she says in a new article for Huffington Post.

“They shouldn’t forget that the sums that stand to be saved in the long-term for the public purse from shrewd investment in the conclusions that keep on coming are eye-watering.”

Since taking up her role 13 years ago, she says “there have been several White Papers, backed by expensive research findings and recommendations.  These covered topics as widespread as parental separation, children’s rights, and parents’ responsibilities. Then there was Breakdown Britain and the sequel, Breakthrough Britain. Most recently we had Early Intervention Foundation research funded by the Department for Work and Pensions.”

Commenting on The Social Mobility Commission report she adds: “Amongst its 80 pages are some conclusions which, were I not such an old-hand, I might feasibly consider the starting gun to reforming policy-making.

“But we knew these things already, so this is another report that has looked at various government research on similar themes, and brought us the usual conclusions.

“For me and my fellow relationship professionals, the key question is ‘does this latest report move us forward?’ I fear not. It really is time for Ministers to join up the dots of the various research findings, to see the pattern and act on it.”

To read the article in full use this link: http://huff.to/2nswUNF

The Social Mobility Commission report, ‘Helping parents to parent’ can be found here: 

News Essentials: 20th March 2017


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

NEWS
Lords warn leaving EU legal framework poses risks for cross-border cases
Justice sub-committee says alternatives should be in place before walking away from reciprocal regulations. Full story: The Guardian. Justice Committee report here.

Local authority alert sees family barrister fined over data security failings
A senior family law and Court of Protection barrister has been fined £1,000 by the Information Commissioner's Office for failing to keep clients’ sensitive personal information secure. Full story: Local Government Lawyer.

The Family Procedure (Amendment) Rules 2017
These Rules amend the Family Procedure Rules 2010, to ensure that applicants for certain orders do not, in person, hand over papers to respondents. Statutory Instrument.

Supreme Court emphasises the limited circumstances in which courts may interfere with testator’s wishes
The Supreme Court has allowed the charities' appeal in Ilott v The Blue Cross and others [2017] UKSC 17. The judgment emphasises the limited circumstances in which the court will interfere with an individual's wishes when making a will. Full story: Family Law Week. See report, below.

People with dementia and learning difficulties detained in care without checks due to 'failing' law, says Law Commission
Capacity and Deprivation of Liberty report published by Law Commission recommends replacing DoLS with a new scheme, called the Liberty Protection Safeguards. Full story: Family Law.

CASES
B (A Child by her Guardian), Re [2017] EWHC 488 (Fam) (15 March 2017)
Application by non-biological mother for child arrangements order in respect of a child now living with the mother in Pakistan. Full report: Bailii.

SU & SA (Children) [2017] EWHC 441 (Fam) (06 March 2017)
Judgment concerning the renewal of British passports for children who were made wards of court under orders made some years ago following their abduction from this country by their father. Full report: Bailii.

Ilott v The Blue Cross & Ors [2017] UKSC 17 (15 March 2017)
Appeal against decision of Court of Appeal setting aside earlier award on Inheritance Act claim, and re-evaluating the award. Appeal allowed. Full report: Bailii.

Martin v Williams [2017] EWHC 491 (Ch) (13 March 2017)
Appeal by wife of deceased against Inheritance Act award in favour of deceased's new partner. Full report: Bailii.

*      *      *
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.

BREXIT UNCERTAINTY: FAMILIES AND BUSINESSES COULD LOSE ACCESS TO JUSTICE ACROSS THE EU, LORDS REPORT SAYS


The House of Lords EU Justice Sub-Committee today publishes its report Brexit: justice for families, individuals and businesses?

This House of Lords report finds that:
  • The current system for civil justice cooperation across the EU member states - in the development of which UK expertise has been prominent - works well.
     
  • Disputes that cross borders, whether family or commercial, are currently settled by judgments that are enforceable across the EU. 
     
  • This gives families, businesses (particularly SMEs) and individuals the legal consistency and predictability on which they depend.
However the Committee found that as Brexit takes effect:
  • Unless the current system of ‘mutual recognition’ of judgments across the EU is duplicated, not only will the advantages be lost, but there will be real hardship for families and businesses, who could be left subject to national rules across 27 other member states.
     
  • The Government has emphasised the importance of separating the UK from the jurisdiction of the Court of Justice of the EU. But the key finding of this report is that alternatives to the existing framework of civil justice cooperation must be in place before the UK’s withdrawal is completed.
     
  • The Committee concluded that falling back on common law and earlier international agreements that are less clear, simple or effective, would leave UK citizens with uncertainty and diminished access to justice.
Chairman of the Committee, Baroness Kennedy of The Shaws said:
"Unless the Government can agree a replacement of the existing rules on mutual recognition of judgments, there will be great uncertainty over access to justice for families, businesses and individuals.

“The Committee heard clear and conclusive evidence that there is no means by which the reciprocal rules currently in place can be replicated in the Great Repeal Bill. Domestic legislation can’t bind the other 27 member states.

“We therefore call on the Government to secure adequate alternative arrangements, whether as part of a withdrawal agreement or a transitional deal."

Friday, March 17, 2017

Wednesday, March 15, 2017

Internet Newsletter for Lawyers March/April 2017


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

In this issue
  • Access to justice – Judith Townend of the University of Sussex considers the human impact of the online court proposals
  • Bar marketing – Catherine Bailey of Bar Marketing provides guidance on completing legal directory submissions
  • Legal practice – David Gilroy of Conscious Solutions asks who (or what) should law firms be afraid of in 2017?
  • Court technology – David Chapman of Zylpha describes how the courts are being digitised and the resulting benefits
  • Litigation – Alex Heshmaty of Legal Words explains predictive coding and its impact on lawyers and paralegals
  • Online legal services – Delia Venables looks at the pros and cons of providing legal services online and the firms doing it

Access the Newsletter online

Ilott v The Blue Cross & Ors: Appeal allowed


Lord Hughes gives the judgment of the Supreme Court

BACKGROUND TO THE APPEAL

The appeal arises out of a claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act (“the Act”), brought against the estate of Mrs Jackson by her daughter, Mrs Ilott. Mrs Ilott and her mother had been estranged for the majority of the 26 years preceding Mrs Jackson’s death in 2004. The estrangement began when Mrs Ilott left home at 17 to live with her now husband, with whom she has five children. Since that time Mrs Ilott has lived independently of her mother but in straitened financial circumstances. Mrs Ilott and her family received a number of benefits, with a net annual income of around £20,000.

In her last will of 2002, Mrs Jackson left the majority of her estate to a number of charities, and made no provision for her daughter. This was a decision Mrs Jackson had made as early as 1984, reflected in her will of that year. Mrs Ilott had been aware for many years of this decision and had lived without any expectation of benefit from the estate.

The District Judge found that Mrs Jackson’s will did not make reasonable financial provision for Mrs Ilott and awarded her £50,000. The charitable beneficiaries under the will initially challenged the finding that there was any lack of reasonable provision, but that challenge failed and the dispute has since proceeded only on the issue of the quantum of the award, which Mrs Ilott appealed as too low. The Court of Appeal held the District Judge had made two errors of principle in his approach. Firstly, he held the award should be limited in light of the long estrangement and lack of expectation of benefit, but did not identify what the award would have been without these factors and the reduction attributable to them. Secondly, he made his award without knowing what the effect of it would be on the benefits which Mrs Ilott and her family presently received, some of which were subject to a means test and which would not payable if Mrs Ilott had savings in excess of £16,000. The Court of Appeal re-evaluated the claim for itself, and awarded Mrs Ilott £143,000 to buy the home she lived in, and an option to receive £20,000 in one or more instalments. The award was designed to avoid affecting Mrs Ilott’s benefits entitlement.

JUDGMENT

The Supreme Court unanimously allows the charities’ appeals. Lord Hughes gives the judgment, with which the rest of the Court agrees. Lady Hale gives a supplementary judgment, with which Lord Kerr and Lord Wilson agree.

REASONS FOR THE JUDGMENT

The District Judge did not make either of the two errors on which the Court of Appeal relied to revisit his award, and so the Court of Appeal’s order must be set aside and the District Judge’s order restored.

The matters to which the court must have regard in exercising its power to award reasonable financial provision are listed under s.3 of the Act. For an applicant other than a spouse or partner, reasonable financial provision is limited to what it would be reasonable for her to receive for maintenance only. This is an objective standard, to be determined by the court. The limitation to maintenance provision represents a deliberate legislative choice and demonstrates the significance attached by English law to testamentary freedom. Maintenance cannot extend to any or everything which it would be desirable for the claimant to have, but is not limited to subsistence level. The level at which maintenance may be provided is clearly flexible and falls to be assessed on the facts of each case, as at the date of hearing. Although maintenance is by definition the provision of income rather than capital, it may be provided by way of a lump sum. [12-25]

As to the first suggested error, the process suggested by the Court of Appeal is not warranted by the Act. The Act does not require the judge to fix some hypothetical standard of reasonable provision and then increase or discount it with reference to variable factors. All of the s.3 factors, so far as they are relevant, must be considered, and in light of them a single assessment of reasonable financial provision should be made. The District Judge worked through each of the s.3 factors, and was entitled to take into account the nature of the relationship between Mrs Jackson and Mrs Ilott in reaching his conclusion. As to the second suggested error, the District Judge specifically addressed the impact on benefits twice. The Court of Appeal’s criticism that his award was of little or no value to Mrs Ilott was unjustified. A substantial part of the award could be spent on replacing old and worn out household equipment which the family had previously been unable to afford. This fell within the provision of maintenance of daily living, and would avoid Mrs Ilott retaining capital for long above the £16,000 threshold. [29-41]

Reasonable financial provision can in principle include the provision of housing, but ordinarily by creating a life interest rather than a capital and inheritable sum, which possibility appeared not to have been considered by the Court of Appeal. To the extent that the benefits means test was relevant, it was likely to apply also to the additional sum of £20,000 apparently awarded with a view to avoiding that test. The statement in the Court of Appeal that a claimant in receipt of benefits should be treated in the same way as a disabled claimant was problematic; what must have been meant was that receipt of means tested benefits is likely to be a relevant indication of a claimant’s financial position. Finally, the Court of Appeal’s order gave little weight to Mrs Jackson’s very clear wishes and the long period of estrangement. The Court of Appeal’s justification for this approach was that the charities had little expectation of benefit either. This approach should be treated with caution, given the importance of testamentary bequests for charities, and because the testator’s chosen beneficiaries, whether relatives, charities or otherwise, do not need to justify their claim either by need or by expectation. [44-47]

Lady Hale in her judgment reviews the history of the Act and preceding legislation. She comments on the unsatisfactory state of the law, giving as it does no guidance as to the weight of the factors to be taken into account in deciding whether an adult child is deserving or undeserving of reasonable maintenance. The approach under the Act invariably involves a value judgment, which may be problematic as there is a wide range of opinion among the public and the judiciary about the circumstances in which adult descendants ought or ought not to be able to make a claim on an estate which would otherwise go elsewhere. [49-66]

References in square brackets are to paragraphs in the judgment, which can be found here.

Monday, March 13, 2017

News Essentials: 13th March 2017


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

NEWS
Munby: ‘judges should not have to justify themselves’
The most senior family judge has stepped into the controversy over press attacks on the judiciary, telling solicitors that judges should not have to justify their rulings – while conjuring a dystopian vision of judges being hauled on to Newsnight to defend themselves. Full story: Law Society Gazette.

Care applications in January 2017
In February 2017, Cafcass received a total of 1,134 care applications.  This figure represents an 8% decrease compared with those received in February 2016. Full story: Cafcass.

Cafcass private law demand
In February 2017, Cafcass received a total of 3,414 new private law cases. This is a 3% increase on February 2016 levels. Full story: Cafcass.

Trenchant comments from Cobb J in two decisions about Human Rights Act claims in care proceedings
Need for practitioners to review new or pending human rights claims attached to care proceedings. Full story: Family Law Week.

Teenager removed from foster parents without notice
Council criticised for failing to follow statutory children’s complaints process and for delay. Full story: Family Law Week.

Extra £20m pledged in budget for battle against domestic violence
Government marks International Women’s Day with measures including greater help for parents returning to work. Full story: The Guardian.

Police pensions: transfer values and pension sharing on divorce
HM Government Actuary's Department has published documents covering non-club transfer values and pension sharing on divorce in the 1987, 2006 and 2015 police pension schemes. Full story: Family Law Week.

CASES
C (A Child), Re [2016] EWHC 3473 (Fam) (08 March 2017)
Application by local authority under the inherent jurisdiction, to seek permission pursuant to section 100 CA 1989 to obtain the court's authorisation of what the local authority contended is child's deprivation of liberty in his current residential unit. Full report: Bailii.

U v J [2017] EWHC 449 (Fam) (08 March 2017)
Application by respondent to strike out petition for want of jurisdiction. Full report: Bailii.

SW & TW (Human Rights Claim: Procedure) (No.1) [2017] EWHC 450 (Fam) (08 March 2017)
Case concerning 2 children, involved in private law proceedings, public law proceedings and a claim for damages under the Human Rights Act, which suffered from a fundamental procedural defect. Full report: Bailii.

Cheshire East Borough Council v PN & Ors (Finding of fact) [2016] EWFC 61 (20 December 2016)
Care proceedings concerning a 9 month old child. Fact-finding hearing regarding cause of head injuries to the child. Full report: Bailii.

Cheshire East Borough Council v PN & Ors (Flawed Local Authority Assessments) [2017] EWFC 20 (03 March 2017)
Final hearing of care proceedings concerning 11 month old child. Hearing adjourned to allow further assessment of possible carers, following flawed assessments by local authority. Full report: Bailii.

B v G [2017] EWHC 223 (Fam) (17 January 2017)
Application by a former husband to vary an order for spousal and child periodical payments. Full report: Bailii.

*      *      *
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.