Friday, October 30, 2015

Surge in non-molestation orders since LASPO


It couldn't have taken a genius to foresee that the so-called 'domestic violence gateway' to legal aid introduced in April 2013 when legal aid was abolished for most private law family matters by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ('LASPO') might lead to the system being abused by those in need of legal aid. It would seem that the statistics in respect of non-molestation orders ('NMOs') indicate that this has been the case.

This post was prompted by an email I received from a husband who was on the receiving end of what he considered to be an unmerited NMO, obtained using false allegations. He has since obtained freedom of information data which indicates not just that the number of NMOs granted by the courts has increased nationally, but also that there have been particularly large increases in certain courts. I will come to his data in a moment, but I will begin with the latest family court statistics which are, of course, freely available.

The graph above was created from those statistics. It hardly needs any comment, showing a clear and sustained increase in the number of NMOs granted since April 2013. Prior to that, there were roughly 5,000 NMOs made per quarter, whereas now there are more like 6,000, an increase of about 20%. Now I'm not a statistician, but I would say that that was 'significant'.

Turning to the FOI data, the startling figures relate to the above-mentioned increase in the number of NMOs made by certain courts, which are considerably higher than that 20% figure. For example, NMOs from 2011 to 2014 went up by 110% at Horsham Family Court in Sussex, and Birmingham Family Court saw a huge 375.4% increase. Dare I say it, but could this be due to the 'tactics' of local legal aid firms, eager for work?

I have also been informed that the matter of increased NMOs has been raised with Shailesh Vara MP, Parliamentary Under-Secretary of State for Justice. He admits there has been an increase in NMOs since the changes to civil legal aid, but is confident that court procedures for granting of NMOs are sufficiently robust that they are not being obtained with the sole aim of getting legal aid.

I've always felt that one of the problems with NMOs is that judges are just ordering respondents not to do what they shouldn't be doing anyway - as they are not therefore infringing upon the respondent's liberty, they find it easy to make the orders 'to be on the safe side'. However, an NMO does have other implications. For example, as Sir James Munby said in a speech to the Families Need Fathers AGM last year, "a wrongly granted without notice order sets the tone of proceedings thereafter".

Sir James also stated that if "there is in fact a significant increase that would concern me and I would investigate it". Perhaps the time has come for him to do that.

A week full of interest


Well, it was for me at least on Marilyn Stowe’s Family Law & Divorce Blog. Hopefully you, too, will find something of interest amongst my posts there this week, which included:

Silencing your enemies - A worrying look at the government's record on justice.

When a child is a fugitive from justice - As in Re G (A Child).

Footballer wins child maintenance appeal - Or “Courts should follow child maintenance formula”. Mostyn J's decision in Re TW & TM (Minors).

A callous and calculating attorney - The appalling Court of Protection case Re SF.

Have a good weekend.

Thursday, October 29, 2015

Research published on self-employed child maintenance paying parents

A quick heads-up for some research published by the Department for Work and Pensions today exploring the attitudes and behaviours of self-employed child maintenance paying parents towards the payment of child maintenance.

I've not read the full 52-page report, but the summary indicates some interesting, if expected, findings. In particular, the reasons for non-compliance under the current (CSA) system. Barriers to compliance included:
  • inability to afford payments due to low or fluctuating income;
  • prioritisation of other bills (e.g., related to ‘survival’ such as rent and heating, work-related expenses, or bills with high costs for non-compliance). This seemed linked to a perception that the cost of non-compliance was low; respondents felt that response from the CSA after non-payment was often delayed or unpredictable;
  • a perception that liability calculations and payment schedules were unfair and did not adequately take into account other factors such as income flow, periods of sickness, support provided outside the statutory system, system errors, etc. Clear (written and verbal) communication and explanation about how liability is calculated could help reduce barriers around illegitimacy. More transparent procedures around how to adjust (perceived) incorrect liability amounts are also required;
  • a perception that child maintenance payments were not being spent on the child – at times resulting in complete rejection of statutory maintenance obligations. Paying parents wished to see measures or communications in place to alleviate their concerns;
  • resentment about a government ‘interfering’ in personal affairs and focusing only on financial child support. This can result in a framing of child maintenance payments as merely ‘paying the CSA’ rather than linking it with supporting their child;
  • negative experiences with the CSA including system errors, perceived disorganisation or inflexible and ‘judgmental’ tone of staff further undermined its legitimacy for some;
  • a perception that paying parents were ‘treated as criminals’ and assumed to be at fault, even when they were willing to pay. Many parents thus felt morally justified in ‘fighting back’ with non-compliance.

Most of which is pretty predictable. Also predictable was the finding that respondents did not think that the application fee under the new (CMS) system was high enough to deter many receiving parents!

The research can be found here.

Generous

Just a quick post to highlight (literally, as above) something  I've not seen before in the heading of a reported judgment. In EDG v RR the heading mentioned not just that the father's counsel Deborah Bangay QC and Rebecca Bailey-Harris were acting for him pro bono, but added the adverb generously, no doubt at the suggestion of Mr Justice Holman, who used that word in his judgment. Deserved recognition for lawyers acting pro bono.

Of course, Ms Bangay and Mrs Bailey-Harris are far from the only family lawyers giving their time free of charge, particularly in these post-legal aid days. Hopefully, all the others will receive similar recognition.

Monday, October 26, 2015

News Essentials: 26th October 2015


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

NEWS
Court of Appeal allows appeal in deprivation of liberty case, criticises judge
The Court of Appeal has allowed an appeal in a case over whether a woman was being deprived of her liberty in her own home, and in the process criticised a High Court judge who maintains that the majority decision in the Supreme Court’s Cheshire West ruling is wrong. Full story: Local Government Lawyer. See also the law report (KW & Ors v Rochdale MBC) below.

70% fewer civil partnerships in 2014
The number of civil partnerships created dropped from 5,646 in 2013 to 1,683 in 2014, according to the latest bulletin from the Office of National Statistics.Full story: Family Law Hub.

Record number of families helped by adoption support fund
More than 2,000 families being helped through life-changing government fund worth over £7 million in the past 6 months. Full story: Department for Education.

CASES
Tickle v Council of the Borough of North Tyneside & Ors [2015] EWHC 2991 (Fam) (19 October 2015)
Cross-applications by journalist seeking permission to report care proceedings and by local authority seeking a reporting restriction order. Full report: Bailii.

H v H [2015] EWHC B24 (Fam) (27 November 2014)
Application by wife under section 27 of the Matrimonial Causes Act 1973. Full report: Bailii.

KW & Ors v Rochdale Metropolitan Borough Council [2015] EWCA Civ 1054 (20 October 2015)
Appeal in case concerning deprivation of liberty of 52 year old severely mentally incapacitated woman. Full report: Bailii.

Medway Council v M & T (By Her Children's Guardian) [2015] EWFC B164 (13 October 2015)
Applications by child and mother within care proceedings for damages relating to unlawful accommodation of child by local authority. 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, October 19, 2015

News Essentials: 19th October 2015


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

NEWS
Sharland and Gohil – Supreme Court decision – Wives win
In a landmark judgment, the Supreme Court allowed the wives' appeals. Full story: Family Law. See also judgments below.

Cafcass private law demand
In September 2015, Cafcass received a total of 3,094 new private law cases. This is a 9% increase on September 2014 levels. Full story: Cafcass.

Care applications in September 2015
In September 2015, Cafcass received a total of 979 care applications. This figure represents a 7% increase compared to those received in September 2014. Full story: Cafcass.

MP says couples should be allowed to apply for 'no fault divorce'
Richard Bacon MP has proposed an amendment to family law which would enable couples to say there was no fault for the break-up. Full story: The Telegraph.

Effective family-based child maintenance arrangements: data to March 2015
Children benefiting from effective family-based child maintenance arrangements after contacting the Child Maintenance Options service. Full story: Department for Work and Pensions.

CASES
Gohil v Gohil [2015] UKSC 61 (14 October 2015)
Appeal by wife against order allowing appeal against order setting aside consent order on grounds of non-disclosure by husband. Appeal allowed. Full report: Bailii.

Sharland v Sharland [2015] UKSC 60 (14 October 2015)
Appeal by wife considering the impact of fraudulent non-disclosure on a financial settlement agreed between a husband and wife on divorce, especially one embodied in a court order. Full report: Bailii.

F (Child's Objections) (was Re N on appeal) [2015] EWCA Civ 1022 (14 October 2015)
Appeal by father against order for the return of the children to Australia. Appeal allowed. Full report: Bailii.

A and B (Contact) (No 4) [2015] EWHC 2839 (Fam) (14 October 2015)
Judgment in long-running proceedings concerning two children regarding, inter alia, issue of contact. Full report: Bailii.

Central Manchester University Hospitals NHS Foundation Trust v A & Ors [2015] EWHC 2828 (Fam) (02 October 2015)
Case concerning the withdrawal of life support from two very young children. 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, October 16, 2015

Don't mention Sharland and Gohil...


I skilfully avoid mentioning the biggest family law news story of the week in my posts on Marilyn Stowe’s Family Law & Divorce Blog, at least in the following ones:

Stopping domestic violence is a wonderful idea, but… - It simply will never happen.

Recusals and manipulating judges - Not that there was any attempt at manipulation in Mackay v Mackay.

How times have changed: divorce 1855 style - A gallant Captain protecting the Empire gets a divorce.

A few thoughts on the no fault divorce bill  - As introduced on Tuesday by David Bacon MP.

Have a good weekend.

Wednesday, October 14, 2015

Adversarial divorce settlement process is bound to lead to fraud


A landmark Supreme Court judgement made today, 14 October, could lead to the re-opening of thousands of divorce settlements as family court-imposed settlements that have been based on wrong financial information can be set aside.

Commenting on the outcome, the CEO of National Family Mediation, Jane Robey, said:

“In the adversarial nature of the ‘traditional’ way of managing divorce, as they’re egged on by solicitors to achieve a ‘victory’ over their ex, it can’t be a surprise that people are tempted to try to hide assets.

“Too often the lawyer-led focus on money and assets proves a distraction from the key question for a separating couple, which is ‘how can we work together to ensure the children flourish in the future?’

Hiding glittering treasure

“The wish to score a notable financial success over the ex they've learned to loathe is what drives so many people as they are lured towards a lawyer’s promise of victory.

“Today’s judgement reinforces, in stark financial terms, that there really are no winners in divorce.

“People who embrace family mediation as a way to make settlements over children, property and money, find themselves in the right mindset to avoid trying to hide money away, and not just because they go through the legally-required inventory of assets in a mediation meeting together.

“In family mediation nobody ‘wins’ but, rather than trying to spite your ex, both parties in a divorce get the chance to shape a bright future in which their child can maintain a positive relationship with both parents. That’s got to beat the hollow triumph that comes from hiding glittering treasure.”

Lord Wilson hands down Supreme Court judgment in Gohil v Gohil



For more, see this post.

Lady Hale hands down Supreme Court judgment in Sharland v Sharland



For more, see this post.

Sharland/Gohil - Comment from Resolution

Speaking following the Supreme Court judgment on Sharland v Sharland, Jo Edwards, chair of family law organisation Resolution, said:

"The success of Mrs Sharland and Mrs Gohil today is a clear indicator that anything less than full and frank disclosure of assets in divorce cases will not be tolerated by the courts, where this has an outcome on the order that the court would otherwise have made. This has significant implications for other cases where assets are suspected of having been concealed, and could see many other recently finalised cases being reopened.

“It is arguably in these cases, rather than the dealings of the multi-millionaire Sharlands, that the importance of this judgment lies. A few extra million pounds may be felt objectively to make little difference to Mrs Sharland's standard of living, but access to a share in concealed assets could make a huge difference in smaller money cases that are heard by judges every day. This is even more important where, on the face of it, the assets available are not enough to meet the parties’ needs.

"This is why Resolution is pushing for reform of how the assets and income on divorce are approached: we want to see a fairer, more transparent system.”

Sharland and Gohil: Appeals allowed

The Supreme Court

The Supreme Court has today handed down its decisions in the related appeals of Sharland and Gohil.

The Issue -Sharland
(1) What is the impact of fraud on:-
i. an agreement to compromise ancillary relief proceedings; and/or
ii. a consent order made following such agreement?
iii. Is it different from, or the same as, it would be in other civil proceedings?
(2) In proceedings for ancillary relief, does fraud give rise to separate remedies to those available in other instances of non-disclosure?

(3) Where either fraud and/or material non-disclosure is established, does the refusal by the court to rescind the order (and so reinstate the trial process) wrongly derogate from the victim’s right to a fair trial?

The Facts - Sharland
Following her divorce, the appellant wife brought a claim for financial provision against the respondent husband. The claim came on for hearing in the High Court. Both the husband and wife gave evidence. During the course of the hearing, the parties were able to reach agreement and the hearing was brought to an end. The terms of a draft order were settled and approved by the judge. The wife later discovered that, contrary to what he had said in evidence, the husband had been holding discussions with various investment bankers as part of active preparations for an initial public offering of a successful company. The husband owned about two-thirds of the shares in that company. The wife’s solicitors made an urgent application to the court not to seal the order. The wife made an application to resume the hearing of her claim for financial provision on the grounds that her agreement to the proposed order had been obtained by fraudulent non-disclosure on the part of the husband. Her application was dismissed by the judge, the judge finding that she would not have secured a substantially different award had the true position been known. The wife’s appeal was dismissed in the Court of Appeal. The wife now appeals to the Supreme Court.

The Issue - Gohil
The correct approach to a party’s application to set aside a final order made in ancillary relief proceedings on the basis that there has been material non-disclosure by the other party.

The Facts - Gohil
In 2004 the appellant wife’s claim for financial relief from the respondent husband was concluded by way of a consent order. The respondent was subsequently convicted of money laundering. The appellant applied to set aside the 2004 order on the basis that at the time it was made he failed to disclose the true extent of his financial assets.

The Decisions
The Supreme Court unanimously allowed both appeals. In the case of Sharland it held that the husband's non-disclosure vitiated the wife's consent and the case was therefore sent back for reconsideration. In Gohil the order of Moylan J setting aside the 2004 order was reinstated.

A press summary of the Sharland judgment is available here, and the full judgment here.

A press summary of the Gohil judgment is available here, and the full judgment here.

Tuesday, October 13, 2015

Coram - a dazzling celebration of 275 years of helping children

Nearly a year late, but hey:

Coram Children’s Legal Centre (CCLC) welcomes guidance for social workers on assessing the age of refugee children

Commenting on the publication today of new best practice guidance for social workers on age assessment by the Association of Directors of Children’s Services, Kamena Dorling, Head of Policy and Programmes at CCLC, said:

“This guidance is long awaited and badly needed. For many years, CLCC has worked with children who have been assessed to be adults or to be older than they actually are. Each year, at least one quarter of all unaccompanied children claiming asylum in the UK have their ages disputed, because they arrive with no documents, or with false papers. Children who arrive alone in the UK are regularly disbelieved about how old they are and can spend many years without access to education or appropriate support, or end up in unsupervised accommodation with adults or even in adult immigration detention centres or prisons. The only way to challenge this treatment is to pursue costly and protracted legal proceedings.

“The number of children arriving alone in the UK is increasing, and throwing into sharp relief some of the weaknesses in the system for children seeking asylum.  There have been frequent calls for guidance to enable social workers to undertake the specialist task of age assessments but until now practice has been largely established through case law following legal challenges. This new guidance is therefore an important step in improving the treatment of children in need of protection.  It will help social workers to conduct holistic assessments and to work with all relevant professionals and carers to respond to the needs of this particular group of children in need.”

Notes
  • The guidance can be found here.
  • The Age Assessment Strategic Oversight group included representatives from the Home Office, Department for Education, the Department of Health, ADCS, the Office of the Children’s Commissioner, individual local authorities, UNHCR, National Policing, Royal College of Paediatrics and Child Health, Refugee Council and the Refugee Children’s Consortium.  Coram Children’s Legal Centre represented the Refugee Children’s Consortium on this group.
  • In 2013, a report published by Coram Children’s Legal Centre highlighted just how long, costly and damaging to children the age assessment process is. Cases can take from months to over four years to resolve, with many children denied access to support, accommodation and appropriate education during that time. These cases are not only harmful for children, but can be incredible costly for local authorities if they end up in court. The report emphasised that where an assessment is necessary, it must be conducted in a fair and lawful manner, with the views of independent professionals and carers feeding into an holistic, multi-agency assessment process.

Monday, October 12, 2015

The Family Mediation Council announces its strategy for professional self-regulation, a new system of accreditation and a public register of practising family mediators

As part of its drive to ensure high standards amongst family mediators and to reflect the pivotal role of mediation in the family justice system, the Family Mediation Council (FMC) is pleased to announce that the work of the Family Mediation Standards Board (FMSB) is now under way and the central registration of practising mediators established.

• The FMSB is an independent standards and regulatory body under the umbrella of the FMC and is chaired by Robert Creighton, a retired NHS Chief Executive and former civil servant. The Board is composed of three family mediators and three independents.

Professional self-regulation of family mediators is designed to:
• assure the public of high standards and protection against poor practice
• provide recognition and support for registered family mediators

• At the beginning of 2015 the FMC introduced a new standards framework with a single professional designation, FMCA (Family Mediation Council Accredited Family Mediator) and the FMSB is implementing self-regulation within that Framework.

• All practising family mediators – both those who are fully accredited and those working towards accreditation – are now able to register as professionals via the FMSB and be placed on the new FMC Register. This will be available to the public and practitioners alike via the FMC website from November 2015. The FMC Register will enable members of the public to seek a family mediator practising to high standards whilst also providing national networking opportunities for family mediation practitioners.

Robert Creighton, Chair of the Family Mediation Standards Board, says:

“I am delighted to take the Chair of the FMSB at its inception. The Board has an essential role to play in the assurance and development of the family mediation profession, which is an increasingly significant element in the family justice system. It is in everyone’s interests that professional self-regulation should be effective and forward-looking, reinforcing public confidence in the role and contribution of family mediators. The establishment of a central register of family mediators is the fulcrum of the profession’s commitment to self-regulation.”

News Essentials: 12th October 2015


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

NEWS
Radicalisation Cases in the Family Courts
Guidance issued by Sir James Munby President of the Family Division on 8 October 2015. Full story: Courts and Tribunals Judiciary.

Couple who were wrongly accused of abuse ‘unlikely to see their child again’
Lawyers believe it is unlikely the adoption of Karrissa Cox and Richard Carter's child will be overturned by a court as such rulings are usually final. Full story: The Independent.

Divorce centres: Further progress report
We are approaching the anniversary of the very first divorce centres - how is the new regime working? Full story: Family Law.

CASES
Mackay v Mackay [2015] EWHC 2860 (Fam) (18 September 2015)
Judgement explaining reasons for judge recusing himself in financial remedies case. Full report: Bailii.

M (Children) [2015] EWCA Civ 994 (22 July 2015)
Appeal by parents of 3 boys against an order dismissing their application for the discharge of care orders made in relation to the children. Appeal allowed. Full report: Family Law Week.

J (Children) [2015] EWCA Civ 1019 (07 October 2015)
Appeal by father against refusal to commit mother for breach of order requiring her to return children to Spain. Appeal dismissed. Full report: Bailii.

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For more news, see here.

For more cases, see here.

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Friday, October 09, 2015

Thoughts on family law


I put my thinking cap on for my posts on Marilyn Stowe’s Family Law & Divorce Blog this week:

The system will collapse for want of a soundbite - Thoughts on live tweeting and the post-LASPO world.

We are all entitled to our day in court - More thoughts on the issue of publicity.

Production line divorce - Thoughts on the new divorce centres.

Advice clinics are all very worthy, but it just ain’t the same - More thoughts about dealing with the effects of LASPO.

Have a good weekend.

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:

NEWS
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.

CASES
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.

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