Monday, August 20, 2018

News Essentials: 20th August 2018


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

NEWS
Financial order reforms set to boost unfairly treated former partners and families
The Government has agreed to improve the enforcement of financial orders, in response to a Law Commission report. Full story: Law Commission.

Civil partnerships in England and Wales: 2017
Annual statistics on formations and dissolutions of civil partnerships analysed by the sex, age, and previous marital status of the couples and the place of registration. Full story: Office for National Statistics.

CASES
W (A Child) [2018] EWCA Civ 1904 (15 August 2018)
Appeal by father against order setting aside previous order requiring mother to return child to Spain. Appeal dismissed. Full report: Bailii.

Sparkasse Koln Bonn v Cutts & Anor [2018] EWHC 1879 (Ch) (30 July 2018)
Determination of beneficial interest in a claim for an order for sale pursuant to a final charging order. Full report: Family Law Week.

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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.

Monday, August 13, 2018

News Essentials: 13th August 2018


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

NEWS
New pilot scheme announced for easier court entrance for legal professionals
The Ministry of Justice has announced a new pilot scheme for practising legal professionals which will allow for them to get direct entrance to courts without the need to be searched. Full story: Family Law.

Child maintenance: new steps to improve compliance and to allow arrears to be written off
The House of Commons library has written a useful summary of recent changes to child maintenance enforcement. Full story: Family Law Hub.

Supervision orders unsuccessful in a quarter of cases, research finds
Review of 26-week care proceedings reforms underlines impact of Re B and Re B-S case law and raises questions around decision-making. Full story: Community Care.

Paediatricians as Expert Witnesses in the Family Courts in England and Wales: Standards, competencies and expectations
Produced by the Family Justice Council and the Royal College of Paediatrics and Child Health, this guide directs the reader to discipline specific information with regards to paediatricians as expert witnesses. Full story: Courts and Tribunals Judiciary.

CASES
F v M [2018] EWHC 2106 (Fam) (03 August 2018)
Appeal by father against refusal to register Russian order that child reside with him. Appeal dismissed. Full report: Bailii.

Kliers v Schmerler & Anor [2018] EWHC 1350 (Ch) (30 April 2018)
The applicant was claiming declarations as to the beneficial ownership of a property, the registered legal ownership of which was her brother. He had obtained a mortgage to buy the property on behalf of the applicant and her then husband as their credit rating was not sufficient. The declarations were granted. Full report: Bailii, via Family Law Hub.

EF and GH (Children) [2018] EWHC 1960 (Fam) (23 May 2018)
Proceedings relating to two children whose mother requested the local authority to accommodate them, following a diagnosis of terminal cancer. Judgment dealing with issue of whether threshold criteria satisfied. 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, August 10, 2018

New by me this week on the Stowe Family Law Blog


My posts this week on the Stowe Family Law Blog included:

Reform opportunities may be slipping away - Looking at the seventh annual report on the implementation of Law Commission recommendations.

Father fails to overturn order for no direct contact - In the case PA v CK & Ors.

Intimidating victims to have domestic abuse charges dropped - A recent report suggests that many defendants in domestic abuse cases are intimidating their victims into not appearing at court.

Financial provision for a child after a transfer of residence - The case C (A Child) Schedule 1 Children Act Variation.

Have a good weekend.

Monday, August 06, 2018

News Essentials: 6th August 2018


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

NEWS
Solicitors' phase of online divorce pilot given green light
The solicitors' application of the online divorce pilot has been approved to go live. Full story: Family Law.

English law applies to Islamic marriage, judge rules in divorce case
Husband tried to block divorce petition, arguing couple were married only under sharia law. Full story: The Guardian. See Akhter v Khan, below.

Sir Andrew McFarlane becomes President of the Family Division
Sir Andrew McFarlane has been appointed President of the Family Division, following the retirement of Sir James Munby. Full story: Family Law.

Financial consent orders can now be filed online
On Monday 6 August 2018 the family courts will take another step towards becoming digital. From that date applications for consent orders in family court financial proceedings can be filed online rather than delivery to a physical court office. Full story: Family Law.

CASES
Akhter v Khan (Rev 2) [2018] EWFC 54 (31 July 2018)
Judgment considering issue of whether an Islamic marriage ceremony creates an invalid or void marriage in English law. Full report: Bailii.

Ubbi & Anori (Minors) v Ubbi [2018] EWHC 1396 (Ch) (27 July 2018)
Inheritance (Provision for Family and Dependants) Act 1975 case where the infant children of the deceased husband and his extra-marital partner claimed that his will (which pre-dated their births) did not make any provision for them after he left everything to his wife. Full report: Bailii, via Family Law Hub.

X (A Child : FGMPO) [2018] EWCA Civ 1825 (31 July 2018)
Appeal by father against provision in FGM protection order forbidding removal of child from jurisdiction. Appeal allowed. 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, August 03, 2018

New by me this week on the Stowe Family Law Blog


My posts this week on the Stowe Family Law Blog included:

Courts modernisation programme could fail to deliver expected benefits - The House of Commons Public Accounts Committee's report on HMCTSs £1.2 billion programme to modernise the courts.

Munby throws out some ideas at final press conference - Including mobile courts and Skype-ing the judge.

Financial Remedies Court Pilot extended - The President’s Circular: Financial Remedies Court Pilot Phase 2.

Separated children case to be dealt with in Alaska - The case being Ford v Halil.

Sir James apologises for his ‘failures’ in ‘Voice of the child’ speech - "Because it is the right thing to do".

Have a good weekend.

Monday, July 30, 2018

News Essentials: 30th July 2018


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

NEWS
President’s Circular: Financial Remedies Court Pilot Phase 2
Following the successful initiation of the Financial Remedies Court project in the West Midlands (part), centred at Birmingham, I am pleased to announce a further roll-out of the pilot, albeit for the time being in modified form. Full story: Family Law.

Pilot Practice Direction 36I – Procedure for online filing of certain applications for consent orders for a financial remedy in connection with matrimonial proceedings
This Practice Direction supplements FPR Part 36, rule 36.2 (Transitional Arrangements and Pilot Schemes). Full story: Family Law.

Practice Direction Amendments to PD9A, PD12B and PD27A
The Ministry of Justice have published a Practice Direction Amendment which makes three minor changes to existing practice directions. Full story: Family Law.

Practice Guidance: Children Arbitration in the Family Court
This Guidance concerns the interface between the Family Court and Arbitrations where the parties to a private law dispute relating to the welfare of a child have agreed to submit the issues in dispute for decision by an arbitrator. Full story: Family Law.

President’s Guidance: Addition to Compendium of Standard Family Orders
The links to the three new orders (numbered 22.1, 22.2 and 22.3) to be added to the compendium of Standard Family Orders can be found below. Full story: Family Law.

Supreme Court rules woman ‘must stay married' as family law experts warn of ‘divorce crisis.'
Supreme Court rules woman ‘must stay married’ as family law experts warn of ‘divorce crisis.’ Full story: Resolution. See report, below.

New Judicial Protocol for Children’s Cases in Scotland, and England and Wales
Sir James Munby, President of the Family Division in England & Wales, and Lord Carloway, head of the Scottish judiciary, have agreed a new judicial protocol, which will provide for the direct exchange of information between judges in intra-UK cross-border cases involving children. Full story: Courts and Tribunals Judiciary.

President’s Guidance: Arrangements for adoption visits
Guidance from the President of the Family Division. Full story: Courts and Tribunals Judiciary.

CASES
PS v BP [2018] EWHC 1987 (Fam) (27 July 2018)
Appeal by father against orders and findings following a fact-finding hearing, including judicial observations upon issue of father cross-examining mother. Full report: Bailii.

M v F [2018] EWHC 1949 (Fam (04 July 2018)
Application by mother for permission to relocate with the children to Uganda. Full report: Bailii.

Harris v Harris [2018] EWHC 1836 (Fam) (03 July 2018)
Appeal by husband against order capitalising spousal maintenance and increasing child support. Full report: Bailii.

A (Children) [2018] EWCA Civ 1718 (25 July 2018)
Appeal by local authority against dismissal of application for care orders in respect of five children. Appeal allowed. Full report: Bailii.

Owens v Owens [2018] UKSC 41 (25 July 2018)
Appeal by wife against dismissal of divorce petition. Appeal dismissed. Full report: Bailii.

Lancashire County Council v A, B and Z (A Child : Fact Finding Hearing: Police Disclosure) [2018] EWHC 1819 (Fam) (02 July 2018)
Fact-finding hearing in care proceedings concerning a girl aged 22 months.The hearing was beset by problems arising from the late disclosure of material held by the police. Judgment includes suggested solutions as to how such problems may be avoided. 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.

Wednesday, July 25, 2018

Owes v Owens: Appeal dismissed


Lord Wilson gives the judgment of the Supreme Court

BACKGROUND TO THE APPEAL

The Appellant, Mrs Owens, and the Respondent, Mr Owens, were married in 1978 and have two adult children. Mrs Owens had been contemplating a divorce since 2012 (when she consulted solicitors who prepared a draft divorce petition for her) but it was not until February 2015 that she left the matrimonial home. The parties have not lived together since her departure. In May 2015 Mrs Owens issued the divorce petition which is the subject of the current proceedings. It was based on s.1(2)(b) of the Matrimonial Causes Act 1973, and alleged that the marriage had broken down irretrievably and that Mr Owens had behaved in such a way that Mrs Owens could not reasonably be expected to live with him. It was drafted in anodyne terms but when it was served on Mr Owens he nevertheless indicated an intention to defend the suit, arguing that the marriage had largely been successful.

In October 2015 the matter came before a recorder for a case management hearing. In light of Mr Owens’ defence, the recorder granted Mrs Owens permission to amend her petition so as to expand her allegations of behaviour. The recorder also directed that the substantive hearing of the dispute would take place over the course of a day (Mrs Owens had originally suggested a half-day would suffice) and that there would be no witnesses other than the parties themselves. Mrs Owens duly amended her petition so as to include 27 individual examples of Mr Owens being moody, argumentative, and disparaging her in front of others, but at the one-day hearing her counsel ultimately focussed on only a very few of these.

The judge found that the marriage had broken down, but that Mrs Owens’ 27 examples were flimsy and exaggerated, and that those relied on at the hearing were isolated incidents. Accordingly, the test under s.1(2)(b) was not met and Mrs Owens’ petition for divorce was dismissed. Mrs Owens appealed against this decision to the Court of Appeal, but her appeal was also dismissed. She now appeals against the Court of Appeal’s decision to the Supreme Court.

JUDGMENT

The Supreme Court unanimously dismisses the appeal, with the result that Mrs Owens must remain married to Mr Owens for the time being. Lord Wilson gives the majority judgment, with whom Lord Hodge and Lady Black agree. Lady Hale and Lord Mance each give a concurring judgment.

REASONS FOR THE JUDGMENT

It is important to bear in mind the legal context to this dispute, namely that defended suits for divorce are exceedingly rare. While the family court recognises that s.1 of the Matrimonial Causes Act 1973 must be conscientiously applied, it takes no satisfaction when obliged to rule that a marriage which has broken down must nevertheless continue in being [15]. The expectations are that almost every petition under s. 1(2)(b) will succeed, that the evidence before any contested hearing will be brief, and that the judgment of the court in such a hearing will almost certainly result in the pronouncement of a decree [17]. This is the background to the contested hearing in this case, and explains why Mrs Owens’ advisors agreed to a short hearing with no external witnesses to corroborate her evidence [14-15].

When applying s. 1(2)(b) the correct inquiry is: (i) by reference to the allegations of behaviour in the petition, to determine what the respondent did or did not do; (ii) to assess the effect which the behaviour had upon this particular petitioner in light of all the circumstances in which it occurred; and (iii) to make an evaluation as to whether, as a result of the respondent’s behaviour and in the light of its effect on the petitioner, an expectation that the petitioner should continue to live with the respondent would be unreasonable [28]. This test has been applied for many years but the application of the test to the facts of an individual case is likely to change over time, in line with changes in wider social and moral values [30-32]. The most relevant change over the past forty years is the recognition of equality between the sexes, and of marriage as a partnership of equals [34].

At the hearing, the judge gave himself the correct self-direction; he understood he was applying an objective test, but with subjective elements [39]. The majority nevertheless have concerns about other aspects of the judge’s analysis. In particular, they have an uneasy feeling about the summary despatch of a suit which was said to depend on an authoritarian course of conduct, when the judge had scrutinised only a few individual incidents of Mr Owens’ behaviour [42]. However, uneasy feelings are of no consequence in an appellate court. A first-instance judge has many advantages in reaching the relevant conclusions, and Mrs Owens’ complaints about the judgment have already been rehearsed and dismissed by the Court of Appeal. In such circumstances it is most unlikely for it to be appropriate for the Supreme Court to intervene [43]. However, the majority invite Parliament to consider replacing a law which denies Mrs Owens a divorce in the present circumstances [44-45].

Concurring judgments

Lady Hale agrees with Lord Wilson as to the legal analysis, but has several misgivings about the judge’s judgment [47-48]. Her gravest misgiving relates to the fact that this was a case which depended upon the cumulative effect of a great many small incidents (which were said to be indicative of authoritarian and demeaning conduct over a period of time), yet the hearing before the judge was not set up or conducted in a way which would enable the full flavour of such conduct to be properly evaluated [50]. In light of her misgivings, she considers that the proper disposal is to allow the appeal, and send the case back to the first-instance court to be tried again. However, this is not a disposal which Mrs Owens is actually seeking, and Lady Hale is therefore reluctantly persuaded that the appeal should be dismissed [53-54].

Lord Mance also agrees with Lord Wilson as to the wider legal analysis, however he does not share the concerns expressed by Lord Wilson and Lady Hale about the judge’s judgment. Lord Mance considers that the judge did not misdirect himself at any stage, and that the judge properly concluded that there was nothing in the case overall [57, 59]. Moreover, although the hearing of the defended divorce petition was listed for a relatively short period, this was how the judge was invited to decide the matter. It would be inappropriate for the Supreme Court to interfere at this stage and say it was not possible in the circumstances for the judge to have reached a fair determination [58].

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

Internet Newsletter for Lawyers July/August 2018


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

In this issue

  • Collaboration – Paul Magrath of ICLR describes many useful apps for working remotely with others
  • Privacy – Alex Heshmaty of Legal Words brings us up to date on the right to be forgotten
  • Cloud suppliers – Delia Venables and guests explain types of cloud system and points to consider when changing supplier
  • Ebooks – Nick Holmes reviews how law publishers have responded to the demand for ebooks
  • Legislation – Nick Holmes looks at how legislation.gov.uk is finally bringing the statute book up to date
  • Privacy – Alex Heshmaty of Legal Words considers the various ways we can be tracked online
  • Open law – Nick Holmes describes the state of open law in the UK and what more is needed to achieve it

Access the Newsletter online

Monday, July 23, 2018

Standard Family Orders Handbook: Volume Two - Children and Other Orders


Standard Family Orders Handbook

Volume 2 - Children and Other Orders

HHJ Edward Hess, HHJ Martin Dancey & Edward Devereux QC

£60 - Published by Class Legal, in association with the FLBA: July 2018

"They [i.e. the authors] would be delighted if you decided to review it in Family Lore." They said.

Well actually, I will not be reviewing it. Because I don't need to.

The reason for that is quite simply that I have already not reviewed the Standard Family Orders Handbook, Volume 1, covering Financial and Enforcement orders and, apart from the fact that Volume 2 covers children and other orders (a fact that I'm sure you will already have gathered), everything you need to know about Volume 2 is in that earlier non-review, which you can find here.

I need say nothing more because if you are a family law practitioner you will already be aware that you simply have to have this volume, nestling next to its companion, on your bookshelf.

The Handbook can be purchased from Class Legal, here. Note that pre-orders are only £45.

News Essentials: 23rd July 2018


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

NEWS
New pilot PD 36H for FGM and Forced Marriage Protection Orders
The Ministry of Justice are launching a new pilot Practice Direction 36H on Moday 23 July, applying to FGM and Forced Marriage protection orders (and variation, extension and discharge thereof). Full story: Family Law.

Private Members Bill seeks to force review of divorce law
Baroness Butler-Sloss, former President of the Family Division, is sponsoring the Bill. Full story: Family Law Hub.

Supreme Court decision in Owens v Owens to be handed down next week
Judgment in wife's high profile appeal against refusal to grant a divorce on behaviour grounds will be handed down Wednesday 25th July. Full story: Family Law Hub.

Husband wins Supreme Court appeal against order to pay all wife’s rental costs
First instance judge was entitled to decline to vary periodical payments order. Full story: Family Law Week. See Mills v Mills, below.

Accommodation under s 20 agreement was lawful without parents’ informed consent
Parents’ appeal fails in Supreme Court. Full story: Family Law Week. See Williams & Anor v London Borough of Hackney, below.

Joint call for urgent ban on cross-examination of domestic abuse victims by alleged perpetrators
Resolution, The Law Society and Women’s Aid have issued a joint call to the Government to urgently bring forward promised legislation banning the cross-examination of domestic abuse victims by alleged perpetrators in the family courts. Full story: Family Law.

CASES
ABCDE, Re [2018] EWHC 1841 (Fam) (16 July 2018)
Application by a local authority for permission to withdraw care proceedings in respect of five children, including consideration of costs order against local authority. Full report: Bailii.

D (A Child) (Temporary Relocation) [2018] EWHC 1571 (Fam) (23 May 2018)
Appeal against order allowing mother to remove child temporarily to Japan. Appeal allowed. Full report: Bailii.

Mills v Mills [2018] UKSC 38 (18 July 2018)
Appeal by husband against order increasing spousal maintenance, on the basis that the increase took into account the wife's housing costs, which had already been provided for in the capital settlement. Appeal allowed. Full report: Bailii.

Williams & Anor v London Borough of Hackney [2018] UKSC 37 (18 July 2018)
This appeal considered the lawfulness of the accommodation of the appellants’ children by the respondent under the Children Act 1989, s 20. Full report: Bailii.

Barker v Winter [2018] EWHC 1785 (QB) (09 July 2018)
Claim for damages after the claimant cohabitee claimed that she had been deceived by the defendant in spending her divorce settlement money on a lavish lifestyle after he promised to pay her back and buy her a house when his own divorce had concluded. Full report: Bailii, via Family Law Hub.

*      *      *
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, July 20, 2018

New by me this week on the Stowe Family Law Blog


My posts this week on the Stowe Family Law Blog included:

Wife succeeds in another forum shopping case - The case being Thum v Thum.

A few thoughts on civil partnerships for sibling couples - As is being discussed in the House of Lords today.

Woman wins claim against partner who deceived her into spending her money - In the case Barker v Winter.

Have a good weekend.

Resolution welcomes Parliamentary report on “highly ambitious” courts modernisation programme


The Public Accounts Committee has today published its report following its enquiry into the HMCTS Transforming Courts and Tribunals Programme. The report calls the £1.2 modernisation programme “highly ambitious” and says “there is a significant risk that HMCTS will fail to deliver the benefits it expects”

Jo Edwards, who chairs Resolution’s Family Law Reform Group and gave evidence to the committee on behalf of the family justice organisation, said:

“We welcome the committee’s report, which should send a clear signal to HMCTS that they need to rethink how they are proceeding with the Courts Modernisation Programme.

“Resolution members regularly report delays in their local courts, and one in two said in our survey that the court they’ve used historically is earmarked for closure. The report rightly identifies Chichester (where a local Resolution member, Edward Cooke, fought for three years for local alternative provision) as a good example of where meaningful consultation by HMCTS early on could have prevented a lengthy debate over local court provision. This story is repeated across the country.

“We hope HMCTS will take note of what the Public Accounts Committee have said today, will reflect on the devastating impact the courts programme is having on families, and will now engage more meaningfully with Resolution members and other court users across the country. Officials need to ensure the programme delivers real improvements to the courts system, without further restricting access to justice, and isn’t simply a cost-cutting exercise.”

Wednesday, July 18, 2018

Williams and another v London Borough of Hackney: Appeal dismissed


Lady Hale gives the judgment of the Supreme Court

BACKGROUND TO THE APPEALS

This appeal concerns the limits of a local authority’s powers and duties to provide accommodation for children in need under section 20 of the Children Act 1989 (‘CA’).

The appellants are the parents of eight children, at the relevant time aged 14, 12, 11, 9, 7, 5, 2 and 8 months. On 5 July 2007 their 12-year-old son was caught shoplifting. He told the police that he had no money for lunch and that his father had hit him with a belt. The police visited the family’s home and found it in an unhygienic and dangerous state unfit for habitation by children. The police exercised their powers under s 46 CA to remove the children to suitable accommodation for a maximum of 72 hours. The children were provided with foster placements by the respondent local authority (‘the Council’). The appellants were arrested and interviewed by the police, then released on police bail on condition that they could not have unsupervised contact with any of their children.

The appellants were asked to sign a ‘Safeguarding Agreement’ by the Council on 6 July 2007 by which they agreed that all the children would remain in their foster placements for the present time. They were not informed of their right, under s 20(7) CA to object to the children’s continued accommodation after the expiry of 72 hours, nor of their right, under s 20(8), to remove them at any time. On 13 July, solicitors instructed on their behalf gave formal notice of the appellants’ intention to withdraw consent. On 16 July the Council decided that the children should be returned home as soon as possible. However, it took until 6 September for the Council to arrange with the police for the bail conditions to be varied, whereupon the children returned home on 11 September 2007.

Criminal proceedings against the appellants were later discontinued. In July 2013 the appellants issued proceedings claiming damages, amongst other things, for breach of their rights under article 8 of the European Convention on Human Rights. The High Court dismissed all the claims except for the article 8 claim, which was upheld on the basis that, because the parents had not given their informed consent, there had been no lawful basis for the accommodation of the children after 72 hours, so that the interference with family life was not in accordance with the law. The judge awarded each of the appellants damages of £10,000. The Court of Appeal allowed the Council’s appeal, holding that consent was not required and that there had been a lawful basis for the children’s accommodation under s 20 CA, and the interference with their article 8 rights had been proportionate.

JUDGMENT

The Supreme Court unanimously dismisses the appeal. It holds that the appellants did not object or unequivocally request the immediate return of the children, so there had been a lawful basis for the children’s continued accommodation under s 20 CA. Lady Hale gives the only substantive judgment.

REASONS FOR THE JUDGMENT

Local authorities in England look after a substantial number of children (over 70,000 in March 2017), either as part of a range of services provided for children in need, or under powers to intervene compulsorily to protect children from harm. Compulsory intervention by a local authority requires the sanction of a court process. No court order is required for the authority to provide accommodation for children in need under s 20 CA. However, it is subject to the right under s 20(7) for a person with parental responsibility for the child, who is willing and able to provide accommodation for him or arrange for accommodation for him, to object, and to the provision in s 20(8) that ‘any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section’ [1-2]. In short, it is a voluntary service.

If a parent delegates the exercise of his or her parental responsibility for a child to the local authority under s 20 CA, such delegation must be real and voluntary. The best way to ensure this is to inform the parent fully of their rights under s 20, although delegation can be real and voluntary without being ‘informed’ [39]. No such delegation is required where the local authority steps into the breach to exercise its powers under s 20 where there is no-one with parental responsibility for the child, the child is lost or abandoned, or the parent is not offering to look after the child. In those circumstances active delegation is not required [40]. If a parent with unrestricted parental responsibility objects at any time pursuant to s 20(7), the local authority may not accommodate the child under s 20, regardless of the suitability of the parent or of the accommodation which the parent wishes to arrange [42-43, 47]. It is not a breach of s 20 to keep a child in accommodation for a long period but a local authority must also think of the longer term and consider initiating care proceedings in order to fulfil its other duties under the CA, and to avoid breaches of the child’s or the parents’ rights under article 8 [49-52].

In the present case, where the s 20 arrangements replaced the compulsory police protection under s 46 without the children returning home in the meantime, the focus was not on the appellants’ delegation of parental responsibility to the Council, but on their rights under subsections 20(7) and 20(8) [53]. Entering into a safeguarding agreement was a matter of good practice, although it was important that it did not give the impression that the parents had no right to object or to remove the children [55]. The lawfulness of the s 20 accommodation depended on whether the appellants’ actions amounted to an unequivocal request for the children to be returned. The bail conditions were not an insuperable impediment to the request and were not a reason to refuse [57]. However, the letters from the appellants’ solicitors could not be read as an objection or as a request for immediate return: the solicitors were sensibly trying to achieve the return of the children as quickly as possible on a collaborative basis rather than push the Council into issuing care proceedings [59]. Although the Council could have provided earlier support for an application to lift the bail conditions, it was not possible to say what effect this would have had, given the independent concerns of the police [60].

Accordingly, there was a lawful basis for the children’s continued accommodation under s 20 and the ground relied on by the judge for finding a breach of the appellants’ article 8 rights was not made out [61]. The question of whether the Council’s actions were a proportionate interference with the right to respect for family life throughout the time the children were accommodated was not fully explored in the lower courts and was not raised as an issue before the Supreme Court [62]. The appeal is therefore dismissed, albeit for reasons which differ from those of the Court of Appeal [63].

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

Mills v Mills: Appeal allowed


Lord Wilson gives the judgment of the Supreme Court

BACKGROUND TO THE APPEALS

The Appellant and Respondent are former husband and wife. They divorced in 2002 after a marriage of approximately fifteen years, and the financial issues in the divorce were resolved by way of a consent order. Under the terms of that order the wife received £230,000 in settlement of her capital claims against the husband, and it was also agreed that the husband would make periodical payments to her at an annual rate of £13,200.

It was reasonably anticipated by the husband that the wife would use the £230,000 to purchase a suitable home for herself and their son without a mortgage, as the wife had been suffering from ill health which made it difficult for her to work. In the event, however, the wife did manage to take out a mortgage, and she duly purchased a more expensive home for £345,000. Between 2002 and 2009 the wife sold and purchased a series of different properties, and with each purchase the amount which she borrowed increased. In addition, she did not necessarily reinvest all of the sale proceeds from one property into the next and seemingly spent the balance, with the result that the amount of capital she had decreased over time. Eventually, in 2009 the wife sold her final property and began to rent accommodation. By April 2015, when the first-instance judge heard the case, the wife had no capital, and she had debts of around £42,000.

The hearing before the judge was to determine two cross-applications made under s.31(1) of the Matrimonial Causes Act 1973. The husband had applied for the discharge or downwards variation of the order for periodical payments, whereas the wife had applied for the order for periodical payments to be varied upwards. In determining the applications the judge noted that there was a shortfall of
£4,092 per annum between the wife’s current needs and, when coupled with her own earnings, the existing level of the periodical payments. However, he also held that, although the wife’s actions had not been profligate, she had not managed her finances wisely and her current financial needs, in particular her need to pay rent, had been increased by the choices which she had made. Consequently, the judge considered that it would be unfair to the husband if he had to make a full contribution to the wife’s rental costs. The judge therefore declined to vary the order for periodical payments either upwards or downwards. This meant that the husband would continue to contribute to around 60% of the wife’s rental costs, and the wife would have to adjust her expenditure to accommodate the shortfall.

The wife appealed against this decision to the Court of Appeal, and was successful. The Court of Appeal considered that the judge had not given sufficient reasons why all of the wife’s basic needs should not be met by the periodical payments from the husband, and increased the level of periodical payments to cover her shortfall, i.e. to £17,292. The husband now appeals against this decision to the Supreme Court.

JUDGMENT

The Supreme Court unanimously allows the appeal, concluding that the judge was entitled to decline to vary the order for periodical payments so as to require the husband to pay all of the wife’s rental costs. Lord Wilson gives the judgment with which Lady Hale, Lord Carnwath, Lord Hughes and Lord Hodge agree.

REASONS FOR THE JUDGMENT

The husband was granted permission to appeal to the Supreme Court only on a single ground - whether, in light of the fact that provision had already been made for the wife’s housing needs in the capital settlement, the Court of Appeal was entitled to interfere with the judge’s decision not to increase the periodical payments so as to cover all of the wife’s current rental costs [32].

The Court of Appeal had erred in saying that the judge had given no reason for declining to increase the order for periodical payments – the judge had given a clear reason, namely that the wife’s unwise decisions in relation to her capital had increased her basic needs by requiring her to pay rent, and that it was consequently unfair to expect the husband to meet these increased needs in full [33].

The Court of Appeal should have considered the impact of the original capital payment on the wife’s current need to pay rent, and this involved a consideration of three earlier Court of Appeal authorities: Pearce v Pearce [2003] EWCA Civ 1054, North v North [2007] EWCA Civ 760, and Yates v Yates [2012] EWCA Civ 532 [34-38]. These cases were correctly decided and in light of this the judge was entitled, although not obliged, to decline to require the husband to fund payment of the rent in full. This respects the wide discretion conferred upon the court under s. 31(1) and (7) of the Matrimonial Causes Act 1973 in determining an application for variation of an order for periodical payments. Moreover, a court would need to give very good reasons for requiring a spouse to fund payment of the other spouse’s rent in the circumstances of this case. A spouse may well be obliged to make provision for the other spouse, but an obligation to duplicate that provision in situations such as this is improbable [40].

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

Monday, July 16, 2018

News Essentials: 16th July 2018


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

NEWS
Courts Service to up the ante on digital divorce and probate
The next year of the court modernisation programme will see digital end-to-end services for divorce, probate, and money claims for under £10,000, according to HM Courts and Tribunals Service. Full story: Legal Futures.

Banker's wife whose husband took mistress to his office party wins right to divorce him in England
A multi-millionaire banker's wife who found out her husband had taken his mistress to his office party has won the right to divorce him in England. Full story: The Telegraph. See Thum v Thum, below.

Supreme Court judgment in Mills due this week
The Supreme Court will hand down judgment in the case of Mills v Mills next Wednesday, 18th July. Full story: Family Law Hub.

Supreme Court to rule this week on use of section 20 Children Act
The Supreme Court will next week hand down a key ruling on the lawfulness of a council's accommodation of children under section 20 of the Children Act 1989. Full story: Local Government Lawyer.

Government U-turn on child maintenance avoidance is “welcome but not enough”
The government’s new child maintenance strategy shows it is listening to the concerns raised by Gingerbread and single parents, but still leaves question marks as to whether the Child Maintenance Service is fit for purpose. Full story: Gingerbread.

Court of Protection application and appeal fees reduced
The Court of Protection, Civil Proceedings and Magistrates' Courts Fees (Amendment) Order 2018. Full story: Family Law Week.

CASES
B (A Child), Re [2018] EWHC 1643 (Fam) (15 June 2018)
Application by father for the return to Spain of child abducted by mother in 2014, and his linked application to enforce custody orders made in his favour by the Spanish courts. Full report: Bailii.

Thum v Thum [2018] EWCA Civ 624 (12 July 2018)
Appeal by husband against decision that the English court, rather than the German court, was first seised of divorce proceedings. Appeal dismissed. Full report: Bailii.

M (BIIa Article 19: Court First Seised) [2018] EWCA Civ 1637 (12 July 2018)
Appeal concerning issue of whether English or Polish courts should have jurisdiction to deal with children dispute. Full report: Bailii.

Chaston & Anor v Chaston [2018] EWHC 1672 (Ch) (5 July 2018)
Appeal against judgment in TOLATA proceedings. Appeal dismissed. Full report: Family Law Week.

*      *      *
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.

Monday, July 09, 2018

News Essentials: 9th July 2018


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

NEWS
Judge blasts social workers’ ‘wholly inappropriate’ record-keeping in case that saw family split for six months
Council advised to look at 'significant training improvements' for social workers after withdrawing care application due to flawed evidence. Full story: Community Care.

Government introduces bill to overhaul deprivation of liberty law in bid to save councils £200m
Mental Capacity (Amendment) Bill will replace Deprivation of Liberty Safeguards with Liberty Protection Safeguards scheme designed to streamline system. Full story: Community Care.

Applications for legal aid supported by domestic or child abuse increase by 21 per cent
Applications granted rise by 14 per cent. Full story: Family Law Week.

‘Deprivation of liberty’ should be defined in law to limit caseloads and family intrusion, say MPs and peers
Parliament should legislate for a statutory definition of deprivation of liberty to limit the number of people whose restrictive care arrangements require legal authorisation because they lack capacity to consent, an influential committee of MPs and peers have said. Full story: Community Care.

CASES
Mantegazza v Mantegazza [2017] EWHC 3811 (Fam) (05 May 2017)
Application by husband pursuant to section 5(6) and paragraph 9 of Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973 for a discretionary stay of divorce proceedings commenced in England by the wife. Full report: Bailii.

The Child and Family Agency (Ireland) v M & Ors [2018] EWHC 1581 (Fam) (22 June 2018)
Application by the Child and Family Agency of Ireland for transfer of care proceedings from the courts of Ireland to the courts of Wales. Full report: Bailii.

M v F & Ors [2018] EWHC 1720 (Fam) (16 February 2018)
Wardship proceedings in which the mother alleged that she had been stranded by the father in Pakistan with one of the four children, since August 2017. Full report: Bailii.

RVH v TF (Non Hague Convention: Refusal of Summary Return) [2018] EWHC 1680 (Fam) (14 June 2018)
Application by father seeking summary return to Ivory Coast of two children. 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.

Monday, July 02, 2018

News Essentials: 2nd July 2018


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

NEWS
Family Court Statistics Quarterly: January to March 2018
A statistical bulletin presenting statistics relating to the family courts in the first quarter of 2018 (January to March). Full story: Ministry of Justice.

Three new appointments to the UK's top appeal court
Lady Justice Arden DBE and Lord Justice Kitchin will join the Supreme Court of the United Kingdom as Justices on 1 October 2018, followed by Lord Justice Sales on 11 January 2019, it was announced today. Full story: Supreme Court.

Appointment of Lord and Lady Justices of Appeal 2018
The Queen has approved the appointment of three Lady Justices and four Lord Justices of Appeal. Full story: Courts and Tribunals Judiciary.

Ban on heterosexual civil partnerships in UK ruled discriminatory
Rebecca Steinfeld and Charles Keidan win bid to open up civil unions to opposite-sex couples. Full story: The Guardian. See law report, below.

Court in tangle after law firm ‘whistleblower’ sends it privileged material
The president of the Family Division is to be asked what the court should do in the highly unusual case of a ‘whistleblower’ from the solicitors of one party to a divorce sending it legally privileged information. Full story: Legal Futures. See Bruzas v Saxton, below.

What normal looks like: McFarlane to canvass views on parental guidance
The next family law chief could produce general guidance to help manage separated parents' expectations about child contact if he receives widespread backing from other judges when he tours England and Wales this autumn. Full story: Law Society Gazette.

CASES
P (A Child) [2018] EWCA Civ 1483 (28 June 2018)
Appeal by mother against refusal of application to adjourn care and placement proceedings for 6 months, where she was an alcoholic and had been abstinent for 13 months. Appeal allowed and placement order set aside. Full report: Bailii.

Northamptonshire County Council & Anor v The Lord Chancellor (via the Legal Aid Agency) [2018] EWHC 1628 (Fam) (05 June 2018)
Judgment addressing the circumstances in which damages recovered pursuant to the Human Rights Act in respect of breaches of duty by a Local Authority following care proceedings are subject to the Legal Aid Agency statutory charge in respect of the costs of those care proceedings. Full report: Bailii.

R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development [2018] UKSC 32 (27 June 2018)
Appeal considering whether the bar on different-sex couples entering into civil partnerships breaches the appellants’ rights under ECHR, art 8, in conjunction with art 14. Appeal allowed. Full report: Bailii.

Bruzas v Saxton [2018] EWHC 1619 (Fam) (21 June 2018)
Directions hearing in case in which wife seeks to set aside consent order, alleging perjury and perverting the course of justice by husband and his legal team, following disclosure of documents by "whistle blower" on H's legal team. Full report: Bailii.

G (A Child) [2017] EWCA Civ 2638 (08 November 2017)
Appeal by father against dismissal of application for leave to oppose the making of an adoption order in respect of his child. Appeal dismissed. 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.

Wednesday, June 27, 2018

Steinfeld & Keidan v Secretary of State for Education: Appeal allowed


Lord Kerr gives the judgment of the Supreme Court

BACKGROUND TO THE APPEALS

Under the Civil Partnership Act 2004 (CPA), only two people of the same sex may enter into a civil partnership. The Marriage (Same Sex Couples) Act 2013 (MSSCA) made marriage of same-sex couples lawful. The CPA was not repealed when the MSSCA was enacted. Consequently, same-sex couples wishing to formalise their relationship have a choice as to whether to enter into a civil partnership or to marry. This choice is not available to different-sex couples. The appellants are a different-sex couple in a committed long-term relationship, which they wish to formalise. They have genuine ideological objections to marriage based upon what they consider to be its historically patriarchal nature. They wish instead to enter into a civil partnership, which they consider would reflect their values and give due recognition to the equal nature of their relationship. They sought judicial review of the respondent’s continuing decision not to make changes to the CPA to allow different-sex couples to enter into civil partnerships.

The issue was whether the bar on different-sex couples entering into civil partnerships breaches the appellants’ rights under article 14 (the prohibition on discrimination) together with article 8 (the right to respect for private life) of the European Convention on Human Rights (ECHR). The High Court and Court of Appeal dismissed their claim.

It is now accepted by the respondent that there is an inequality of treatment between same-sex and heterosexual couples, and that this inequality engages article 14 read in conjunction with article 8 of the ECHR. The respondent also accepts that the inequality therefore requires justification from the date it first began (ie. on the coming into force of the MSSCA). The principal issue before the Supreme Court was therefore whether justification of the inequality includes consideration of the period of time during which the respondent could investigate how best to eliminate the inequality or whether the justification must be directed exclusively to the very existence of the discrimination.

JUDGMENT

The Supreme Court allows the appeal. Lord Kerr gives the judgment with which all the other Justices agree.

REASONS FOR THE JUDGMENT

When Parliament enacted the MSSCA, it consciously decided not to abolish same-sex civil
partnerships or to extend them to different-sex couples, even though it was recognised at the time that this would bring about an inequality of treatment between same-sex partners and those of different sexes, and that this inequality would be based on the sexual orientation of the two groups. It was decided that further investigations were required, and the government concluded that it should not take a final decision on the future of civil partnerships until societal attitudes to them became clearer after same-sex marriages had taken root [7]. Government consultations since the introduction of the MSSCA have failed to produce a consensus as to how, or if, the legal position relating to civil partnerships should change. The respondent concluded that it was proportionate to obtain more data in order to decide whether there was a need to preserve civil partnerships [9].

The court rejects the respondent’s argument that European Court of Human Rights (ECtHR) case law requires a wide margin of appreciation in relation to the timing of legislative change to recognise different forms of relationship, and that a significant measure of discretion should be accorded to Parliament in its decision as to when the timing of legislative change in the field of civil partnerships should occur. Although a measure of latitude should be permitted to Parliament, the concept of a “margin of appreciation” as applied by the ECtHR has no application in domestic law – a national court must confront the interference with an ECHR right and decide whether it is justified [27-28]. In as much as there is a margin of discretion analogous to that applied by the ECtHR, in cases of unequal treatment on grounds of sexual orientation, the margin is narrow [32]. It is reasonable that the legislature should be allowed time to reflect on what should be done when dealing with an inequality that it has come to recognise due to evolving societal attitudes. By contrast, to create a situation of inequality and then ask for time – in this case several years – to determine how that inequality is to be cured is less obviously deserving of a margin of discretion. [36]

There is a well established four stage test to determine whether interference with a qualified ECHR right can be justified: (a) is the legislative objective (legitimate aim) sufficiently important to justify limiting a fundamental right; (b) are the measures which have been designed to meet it rationally connected to it; (c) are they no more than are necessary to accomplish it; and (d) do they strike a fair balance between the rights of the individual and the interests of the community? [41].

To be legitimate, the aim must be intrinsically linked to the discriminatory treatment. In this case, it is not. Tolerance of discrimination while the respondent determines how best to remedy it cannot be characterised as a legitimate aim [42]. The government had to eliminate the inequality of treatment immediately when the MSSCA came into force. This could have been done either by abolishing civil partnerships or by instantaneously extending them to different-sex couples. If the government had chosen one of these options, it might have been theoretically possible to then conduct research which could have influenced its longer term decision as to what to do with civil partnerships. Taking time to evaluate whether to abolish or extend could never, however, amount to a legitimate aim for the continuance of the discrimination as it is not connected to the justification for discrimination [50].

Even if the interference with the appellants’ rights in this case could be regarded as a legitimate aim, a fair balance between their rights and the interests of the community has not been struck. The interests of the community in denying civil partnerships to different-sex couples who do not wish to marry are unspecified, whereas the consequences of this denial for such couples may be far-reaching. A couple may, for example, suffer serious fiscal disadvantage if one of them dies before their relationship is formalised. There is no end point in sight for the present inequality of treatment [52].

The court has discretion as to whether to make a declaration of incompatibility and must decide whether it is appropriate to do so in a particular case. It should be noted that a declaration of incompatibility does not oblige the government or Parliament to do anything, and in this case, the court should not feel reticent about making such a declaration. The court therefore makes a declaration that sections 1 and 3 of the CPA, to the extent that they preclude a different-sex couple from entering into a civil partnership, are incompatible with article 14 taken in conjunction with article 8 of the ECHR [54-62].

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

Monday, June 25, 2018

What separated parents need to consider when taking their child on holiday

When separated from your child’s other parent, holiday planning can become slightly more complicated due to navigating the other parent’s rights and wishes. If you are taking your child away for the first time, it is important to take into consideration your legal rights to ensure a smooth and stress-free holiday planning process. By recognising exactly what you can and cannot do, and empathising with the other parent’s viewpoints, you can minimise any form of disruption or resistance, and subsequently channel your energy into creating a family holiday full of fun experiences and lasting memories with your child. Below we guide you on the different points to consider, and show you how involved the other parent has to be in your decision-making. Here are five elements of taking your child on holiday that you should take into account for a successful trip away.

Do you need permission from the other parent?

When planning a holiday with your child, the initial question that arises is do you need permission to take them away with you? The short answer is yes. If you share parental responsibility with another person, they must give you permission to take the child abroad, otherwise you could be committing the criminal offence of abduction. Once you have explained your holiday plans to the other party, they can give written permission in the form of a letter. The letter should note details of the trip and their personal contact details. It is important to keep the letter with you on your travels, as you may be asked to show this at any UK or foreign borders. If you have been unable to receive permission from the other party, you may still be able to take your child on your holiday. By applying for and subsequently receiving a court order which states you may take your child away means your holiday plans could still go ahead. When applying for the court order you should give information on where you are going, departure and return dates and also supply the contact details of the other person with parental responsibility.

Passports

When it comes to getting a passport for your child, this can be signed by either parent with parental responsibility. Even if you are separated, you remain having equal rights to apply for the child’s passport. The application can be made by the mother or the father, and subsequently signed by that party, provided they show proof of the child’s nationality in the form of an original birth certificate. There are situations which may mean you cannot apply for a passport, such as if an objection has been lodged at the passport office by the other parent, if a court order has been made which affects the passport office issuing the passport to you, or if the child already has a passport. If you don’t have parental responsibility, you will need to discuss the passport application with the other parent so they can fill in and sign the necessary paperwork for you. A child’s first passport involves a great deal of paperwork and therefore cannot be issued with the premium one-day service, so ensure you leave plenty of time to get the document issued using the standard or one-week fast track postal service.

Planning ahead

If you share the care of your child, your holiday may cross over into time that you wouldn’t normally have responsibility for them. For successful holiday planning it is essential that you communicate with your ex-partner to deduce a suitable time to go. Don’t underestimate the amount of commitments and plans your child may already have, which you will need to conscientiously work around. Whether there is an upcoming hospital appointment, a much anticipated school trip or a family event that your ex-partner may have already planned, holiday scheduling will run much more smoothly if you begin with discussing the easiest and most suitable times to go. You will need to take into account a multitude of appointments, exams and events to ensure the least disruption to your child’s and ex-partners plans and routines. As you will also have certain commitments yourself, ultimately this discussion will be one of understanding the other parent’s viewpoint, prioritising plans and finally compromising on an agreed date that works for everyone involved.

Reassuring the other parent

Taking your child on holiday may be an incredibly exciting and bonding experience for you both, but spare a thought for the other parent who may develop anxieties about being separated from their child by such a distance or long amount of time. This may be the first time they have been separated from your child for an extended period, and it is natural to have worries about the safety and care of them while on a trip away. To be understanding in this situation, it is important to remain open and informative about your holiday plans, and let the other parent know where you are going and what you plan to do. In case of emergencies, it is sensible to give the other parent the contact details for where you will be staying, and for their further piece of mind, it would be reasonable to let the child stay in touch with the other parent throughout the trip. Emotions may run high at the thought of being separated from their child, so it is important to communicate and empathise with their situation in order to lessen any objections.

Delayed flights

If your flight home is delayed, you may then miss the agreed time to hand the child back to the other parent. In the event of this happening, it is imperative to keep the other parent well-informed of how lengthy the delay will be and when you expect to be back home. A delayed flight is a very good reason for not returning a child on time, as the situation is unexpected and out of your control. Depending on the length of the delay, you may be required to stay at the airport for many extra hours, or even end up staying in your holiday country an extra night. Delays can cause huge upset to plans and routines, therefore it is advisable to ask a legal expert about how to make a flight delay compensation claim in the event of certain delays, you could claim for the inconvenience and be reimbursed monetarily.

How Are Medical Negligence Compensation Claims Changing?

During the country’s recent past, it has been notably commented on that a popular culture of compensation claims is developing in the UK.

In the heavily media-saturated world that we live in, it is hard to ignore the numerous adverts popping up on the radio, television and social media channels, promoting legal firms that work solely in that area and are living proof of the growth occurring in this sector.

Due to the steadily increasing number of cases that require legal aid for compensation, the Government recently began the process of seeking a review into the laws that currently uphold medical negligence issues.

This increasingly important review perfectly demonstrated the start of a complete refresh and overhaul of the systems in place, which will inevitably involve making changes to the legal definition of negligent actions. Not only that, but the way in which compensation claims are made and processed will require a refresh.

Here is a bite-sized breakdown of what you can expect to find when placing a compensation claim in the foreseeable future.

Governmental Review

Earlier this year Jeremy Hunt, Health Secretary issued the need for the imminent review of the issues that are covered under the umbrella of medical negligence and malpractice.

This review followed the case of Dr Hadiza Bawa-Garba, who was deregistered following the case of malpractice which lead to the death of a young boy who was in her care.

The news attracted wide-spread attention and concern was expressed by Hunt that the NHS is stretched-thin and as a direct result, its staff are buckling under the mounting pressure.

A number of factors are coming into play with this issue, including the extensive working hours, shortage of staff and the funding cuts that we are becoming all too used to seeing of late.

It has also been suggested that now, more than ever, the threat of such weighty consequences for medical staff is stopping them from seeking help when they are in need of it.

It is clear that there is fear amongst the current medical professionals and as a direct result of this, there is concern that medics will suffer alone, rather than facing the possible and very real chance of having their careers and livelihood removed from them.

The Numbers

There is a unification in the knowledge of the public at present that truly highlights the rising picture of compensation claims, backed-up by the cold hard facts found in an array of independent surveys.

Between the five-year period of 2008 to 2013, there was a dramatic increase in individuals seeking compensation in cases of medical negligence by 80%. This is complemented by the fact that between 2012 and 2013 there was a 20% rise recorded; with figures such as these it is evident that stringent rules need to be in place moving forward.

There has been particular concern raised within the NHS, after the release of new figures by the NHS Litigation Authority. This research demonstrated the findings from 2015-2016 was showing record highs of compensation awarded through medical negligence, which subsequently resulted in the NHS providing £1.4 billion to patients and families. The span of medical negligence can run across a wide spectrum of ages and situations, for example issues caused within childbirth. It is with circumstances such as these that the requirement for stringent laws, as well as fair studies of the situation becomes paramount.

It is also important to note that the previous years findings showed another £1 million in pay-outs, which cements the findings and the theory that medical negligence claims are on the up.


Impact on Claims

With such change and uncertainty, it is understandable that both organisations and the medical professionals within them are fearful for the UK’s future medical offerings, without detracting from the service they provide.

Rising costs of care are at the forefront of almost everyone’s minds at present, especially medical professionals, and this is then compounded by the ever-increasing amounts of compensation claims and pay-outs.

It is important to note here that these thoughts and fears are not to say that the abolishment of compensation is being condoned, but instead the realisation that changes need to be made to the relevant laws has come to the fore. These decisions currently lay with leaders of the British Medical Association, Academy of Medical Royal Colleges and NHS Confederation.

The current reforms could lead to a change in laws that ensure the amount of money paid out to victims of medical negligence is set by varying boundaries, with more information made available regarding how to make a claim for medical negligence.

At present changes are being made to a wide variety of legislations across the compensation claims sector, for example those involving whiplash. Victims have found that the amount they are able to claim varies on the severity and incident and therefore the number awardable is capped. It is reforms such as these that may provide part of the answer to the issues seen within the NHS at present, while also setting a precedent for future medical negligence issues.


What Now?

With the cost of medical negligence claims set to at least double by 2023, the need for change is critical and while the combination of medical, legal and public bodies are in discussions, the time zone we are faced with is precarious at present.

For the legal side of things, it is important to begin making preparations for change. It looks increasingly likely that future claims will be capped, which will imminently affect the service that legal teams are able to offer to clients.

Keep an eye on the Government at present, as changes are in motion and only time will tell when it comes to the changes and reforms we will see and how they will impact those in need in the future.