Monday, February 19, 2018

News Essentials: 19th February 2018


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

NEWS
Supreme Court ruling highlights complexities in family 'abduction' cases
The Supreme Court has highlighted the complex nature of issues that lower courts have to grapple with in relation to family cases involving the Hague Convention on civil aspects of international child abduction. Full story: Law Society Gazette. See C (Children), below.

Public law cases received by Cafcass in January up 3% on a year ago
Highest monthly total for a January on record. Full story: Family Law Week.

New private law cases received by Cafcass in January up 11% on a year ago
3,590 new cases received. Full story: Family Law Week.

Supreme Court to hear s.20 Children Act accommodation case this week
The Supreme Court will this week consider the lawfulness of a London borough’s accommodation under s.20 of the Children Act 1989 of eight children who had been taken into police protection. Full story: Local Government Lawyer.

CASES
R (Children) [2018] EWCA Civ 198 (16 February 2018)
Appeal by father against finding that he had "used unreasonable force and unlawfully killed the mother", dealing with issue of the extent to which, if at all, the Family Court should import elements of criminal law into a fact-finding determination within child care proceedings. Full report: Bailii.

Re J [2018] EWFC 8 (13 February 2018)
Application by father to appeal against adoption order made in 2013 in favour of step-father. Appeal allowed and order set aside, on basis that father had not been a party to the proceedings, the mother having stated that she did not know the father's identity. Full report: Family Law Week.

M (A Child) [2017] EWCA Civ 245 (19 December 2017)
Appeal from a finding of fact made in care proceedings involving six children. Appeal dismissed. Full report: Bailii.

M (A Child) [2017] EWCA Civ 2356 (13 December 2017)
Appeal by father against order that mother could relocate with child to Columbia. Appeal allowed. Full report: Bailii.

In the matter of C (Children) [2018] UKSC 8 (14 February 2018)
Appeal by mother against decision of Court of Appeal to allow father's appeal against refusal of application for summary return of children to Australia, dealing with issue of "repudiatory retention". Appeal allowed. Full report: Bailii.

DB v CB [2017] EWHC 3559 (Fam) (06 November 2017)
Application by father for summary return of child to Switzerland. Application dismissed, on the basis that the child was habitually resident in England and Wales. 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.

Largest study of its kind finds 83% of looked after children and young people feel being in care has improved their lives but younger children need more support

Published today (19 February), the largest study of its kind measuring the subjective wellbeing of 2,263 looked after children and young people across 16 local authority areas has revealed that 83% feel being in care has improved their lives, and that the longer children and young people have spent in care, the more likely they are to have moderate to high levels of wellbeing.

 However, whilst the majority of young people are positive about their experiences of care, the findings highlight where improvements are needed. Of the youngest children surveyed (4-7 year olds), over half (53%) thought it not had been fully explained to them why they were in care, and almost a quarter (23%) were unsure of who their social worker was. In addition, almost a fifth (19%) of 8-10 year olds do not feel listened to or included in decisions made about them.

 The ‘Our Lives Our Care’ study, published by the charity Coram Voice and the University of Bristol is part of the Bright Spots programme which enables local authorities to find out directly from young people in care what wellbeing means to them and what areas need to be improved. The programme is highlighted in the Department for Education’s recent Fostering Stocktake report, with a recommendation that “all local authorities use Bright Spots, or similar to survey approaches regularly and systematically to measure all children’s experience of fostering.”

 The latest government figures show there are over 72,000 children in care in England, with the largest majority in care due to parental abuse and neglect. Whilst official data is published on areas such as placement moves and educational and employment outcomes, the Bright Spots programme is the first to focus on how children feel themselves about their wellbeing and their lives in care including relationships, opportunities and support received. It is also the only study of its kind to survey children as young as four.

 The study consists of online surveys for children aged 4-7 years, 8-10 years and 11-18 years, and results show that, compared to young people in the general population, a larger proportion of children in care feel safe where they are living and felt their carers were interested in their education. In addition, the majority (92% of 11-18 year olds, 93% of 8-10 year olds and 89% of 4-7 year olds) felt their carers noticed their feelings. One young person wrote: “I feel I have a proper family who care about me and value my opinions. I feel loved and cared for.”

 Children and young people emphasised the importance of having a trusted adult in their lives. However, almost a third (31%) of 11-18 year olds reported that they have had three or more social workers in the past year, and one young person commented: “I think that social workers shouldn’t move around as much because they just get to know your life story…how can you trust them when you don’t even know them or have hardly ever met them?” 8% of 11-18yrs had no contact with either parent and 20% had lived with five or more foster carers since entering care.

 Some children and young people also felt that changes of placement and school had negatively affected their friendships, and one in ten 11-18 year olds reported not having a good friend (compared to just 3% of 14 year olds in the general population).

 Furthermore, some young people reported ‘feeling different’ to others because of their experiences in care, and almost a third (30%) of 8-10 year olds were afraid to go to school because of bullying. One young person wrote: “Being in care is a struggle because you get bullied or picked on for being special and this can bring my mood down.” 16% of children also thought they were not given opportunities at school to show they could be trusted.

 Professor Julie Selwyn CBE, Director of the University of Bristol’s Hadley Centre for Adoption and Foster Care Studies and lead author of the study said:  “The results of the survey show that most children and young people are flourishing in care but about 18% of young people (11-18yrs) are not. Young people with low well-being did not feel settled and felt that they were being moved from placement to placement.  The detrimental impact of a lack of a trusted adult in these children’s lives cannot be over-estimated.”

 Dr Carol Homden CBE, CEO of Coram said: “It is encouraging to hear that such a large majority of children and young people in care feel their lives are improving and that for most, the care system is providing them with the safety, support and opportunities they need to thrive.

 “However the results show us that we can and must take action to address the avoidable losses of care so that children feel “normal” and are able to do the same things as their friends, have an understanding of why they are where they are, and a part to play in decisions that affect them.”

 The study also uncovered that girls and children with black or mixed ethnicity reported lower wellbeing. Happiness with appearance is an especially significant factor in predicting girls’ wellbeing, along with being given opportunities to be trusted, liking their bedrooms, doing the same things as friends, having a trusted adult, feeling safe and not being afraid to go to school because of bullying.

 In comparison with young people of other ethnicities, a larger proportion of the mixed ethnicity group had experienced five or more placements, disliked school, did not understand why they were in care and were the least positive about their future.

 Brigid Robinson, Managing Director of Coram Voice said: "In addition to the 16 covered in this report, since last year, a further 15 local authorities in England and Wales have become involved in the Bright Spots programme, showing that they can really see the potential benefit for their services. We are able to work with even more authorities this coming year and urge anyone interested to get in touch with us to find out more.”

 Find out more about the Bright Spots programme at www.coramvoice.org.uk/brightspots.

Friday, February 16, 2018

Drama and pathos: the world of family law


I've often said that you never know what you're going to come across when following the world of family law, and that was certainly true this week, as demonstrated by my posts on Marilyn Stowe’s Family Law & Divorce Blog, which included:

Woman granted injunction to prevent alleged blackmail by former partner - The case Ho v Bragg.

A different but better family justice system? - There is a fundamental problem with such a thing.

Appeal against order authorising DNA test of deceased person dismissed -  The Court of Appeal judgment in Anderson v Spencer.

Tearful father withdraws contact application after seven year dispute - The sad case Re J (A Child - Intractable Contact).

Have a good weekend.

Wednesday, February 14, 2018

In the matter of C (Children): Appeal allowed


Lord Hughes gives the judgment of the Supreme Court

BACKGROUND TO THE APPEAL

This matter centres around a married man and woman who, until 2015, had been living together in Australia with their two children. By the end of 2014 the marriage was in difficulties. The mother, who holds British citizenship, wanted to make a trip to England with the children before returning to work from maternity leave. The father agreed to an eight-week stay. The mother and the children came to England on 4 May 2015 where they have since remained. Discussions between the mother and father resulted in the father agreeing to an extension of the eightweek visit up to a year. Based on the extension, the mother gave notice to her employer and looked for work in England.

In September 2015, the mother enrolled the older child at a local pre-school. Without telling the father, on 2 November 2015, she applied for British citizenship for both children who had entered England on six-month visitor visas. Her solicitors wrote a letter to the immigration authorities on her behalf indicating that she and the children could not return to Australia for fear of domestic abuse.

In continuing correspondence, the father pressed the mother on the children’s expected date of return. The mother indicated that she did not know what her plans were but made clear that she would not be returning in May 2016. In June 2016, she expressed her intention to remain in the UK.

The father made an application in the High Court under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the “Abduction Convention”). The issue of when the mother had decided not to return to Australia was in contention. The mother’s own case was that by April 2016 she had felt she and the children would not be returning. The arguments before the Court meant that, on any view, there was a decision not to return to Australia before the expiry of the agreed year. The judge held that the children were habitually resident in England and Wales by the end of June 2016 so that mandatory summary return was unavailable under the Abduction Convention. But he accepted mother’s evidence that she did not have the intention, in November 2015, or before April 2016, not to return to Australia.

The mother now appeals against the Court of Appeal’s decision. The issues in the appeal are: (1) what is the effect on an application under the Abduction Convention if a child has become habitually resident in the destination state before the act relied on as a wrongful removal or retention occurs; and (2) if a child has been removed from their home state by agreement with the left-behind parent for a limited period can there be a wrongful retention before the agreed period of absence expires (so-called “repudiatory retention”)? The father cross-appeals on the issue of habitual residence.

JUDGMENT

The Supreme Court allows the appeal and dismisses the cross appeal. Lord Hughes gives the lead judgment with whom Lady Hale and Lord Carnwath agree. Lord Kerr and Lord Wilson each give judgments concurring on the two points of principle but dissenting on the outcome of this case on its facts.

REASONS FOR THE JUDGMENT

Issue 1

When considering the general scheme of the Abduction Convention, the construction that summary return is available if, by the time of the act relied on as a wrongful removal or retention, a child is habitually resident in the state where the application for return is made is unpersuasive. That construction is inconsistent with the operation of the Abduction Convention since 1980 and its treatment by subsequent international legal instruments. [19]

The Abduction Convention is designed to provide a summary remedy which negates the pre-emptive force of wrongful removal or retention and to defeat forum-shopping. [21] The point of the scheme adopted by the Abduction Convention was to leave the merits to be decided by the courts of the place of the child’s habitual residence. If the forum state is the habitual residence of the child, there can be no place for a summary return to somewhere else, without a merits-based decision. This understanding of the scheme of the Abduction Convention is reflected in the provisions of both the Revised Brussels II Regulation and the 1996 Hague Convention on Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children. [23]

The Abduction Convention cannot be invoked if by the time of the alleged wrongful act, whether by removal or retention, the child is habitually resident in the state where the request for return is lodged. In such a case, that state has primary jurisdiction to decide on the merits, based on the child’s habitual residence, and there is no room for a mandatory summary decision. [34]

Issue 2

Repudiatory retention has been recognised in some jurisdictions, but no generally accepted international practice or authority exists on the point. [39] The desirability of inducing a prompt change of mind in the retaining parent is an argument for recognising a repudiatory retention when and if it occurs. The 12 month time limit for seeking mandatory summary return runs from the point a repudiatory retention occurs and that period may pass before an applicant is aware of the repudiatory retention. However, it is not a limitation period but a provision in the child’s interest to limit mandatory summary return. Once elapsed it renders a summary return discretionary. The concern that repudiatory retention would make Abduction Convention applications longer and more complicated is a point well made. However, Family Division judges are used to managing applications actively and controlling any tendency to spill outside the relevant issues. Further, if repudiatory retention requires an overt act or statement, this lessens the danger of speculative applications. [46-48]

Repudiatory retention is possible in law. The objections to it are insubstantial, whereas the arguments in favour are convincing and conform to the scheme of the Abduction Convention. It would be unwise to attempt an exhaustive definition of proof or evidence. An objectively identifiable act of repudiation is required, but it need not be communicated to the left-behind parent nor does an exact date need to be identifiable. [50-51]

On the present facts there could not have been a wrongful retention in April 2016 as the mother’s internal thinking could not by itself amount to such. If she had such an intention in November 2015, the application to the immigration authorities could have amounted to a repudiatory retention. But it was open to the judge to believe the mother’s evidence that she did not possess this intention in November. [55] There is no basis in law for criticising the judge’s decision as to habitual residence. [57]

Lord Kerr dissents on the outcome of this case on its facts. He expresses misgivings about repudiatory retention requiring an overt act by the travelling parent. [63] The judge’s finding that wrongful retention did not arise in this case could not be reconciled with his statement that the mother had concluded by April 2016 that she and the children should remain in England. [68] Moreover, the judge’s conclusion that the mother had not formed any intention to retain the children in England in November 2015 is insupportable as he failed to address the question of what bearing the letter of November 2015 had on her intention. [72]

Lord Wilson also dissents on the outcome of this case on its facts. The solicitor’s letter to the immigration authorities in November 2015 represented a major obstacle to any finding that the mother had not by then intended to keep the children in the UK indefinitely. The judge’s finding as to the mother’s intention in November 2015 was flawed and the Court of Appeal were correct to order a fresh inquiry into her intention. [91-92]

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

Monday, February 12, 2018

News Essentials: 12th February 2018


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

NEWS
Court of Protection: SRA regulation allows for immediate approval of trust corporations
Trust corporations wanting to act as property and affairs deputies for incapacitated people must be regulated by the Solicitors Regulation Authority to gain immediate approval, the Court of Protection has ruled. Full story: Legal Futures.

Supreme Court to decide whether ‘anticipatory retention’ is recognised under the 1980 Hague Convention
Judgment in appeal against C (Children) [2017] EWCA Civ 980 to be given on 14 February 2018. Full story: Family Law Week.

CCLC report calls for effective access to justice for all children
A Coram Children’s Legal Centre report has found that the narrowing in scope of provision of legal aid by LASPO has resulted in thousands of children being left without access to free legal advice and representation each year. Full story: Family Law.

Foster care in England report published
Sir Martin Narey and Mark Owers's independent review of the fostering system in England with recommendations to the government about improving foster care. Full story: Department for Education.

CASES
An NHS Trust v S & L (A Child) (Witholding Life Sustaining Invasive Treatment) [2017] EWHC 3619 (Fam) (10 November 2017)
Application by NHS Trust for declarations relating to the continued treatment of a young child suffering from a terminal condition. Full report: Bailii.

Anderson v Spencer [2018] EWCA Civ 100 (07 February 2018)
Appeal against order directing that DNA extracted from a deceased man should be tested against a bodily sample to be taken from the Respondent, to establish whether the deceased was or was not the Respondent's biological father. Appeal dismissed. Full report: Bailii.

J (Children) [2018] EWCA Civ 115 (06 February 2018)
Appeal by father against no contact and indirect contact only orders in respect of two children. Appeal allowed, but no other order made, as it was considered too late to contemplate a re-hearing. 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.

Tuesday, February 06, 2018

Online divorce demystifies the process when people are at crisis point

Jane Robey
The largest provider of family mediation for divorce in England and Wales has welcomed an announcement from HM Courts and Tribunals Service (HMCTS) that a fully online divorce application process is now being tested.

 Jane Robey, CEO of National Family Mediation, said: “Facing a divorce is one of the biggest crisis points in anyone’s life, so it’s particularly important that the process is as simple and straightforward as possible.

 “The last thing people need at this time is to have to get to grips with a new set of legal jargon – words like ‘affidavit’. ‘plaintiff’ and ‘respondent’ - simply in order to move on with their lives.

 “The excellent digital work being developed by HMCTS promises to help demystify the process and simplify things, bringing divorce into the 21st century, using a language we can all understand.

 “Bringing divorce processes online makes them much more accessible which by definition can provide better access to justice and swifter resolution to seemingly-complicated procedures.”

 For more information about the HMCTS pilot use this link.

Monday, February 05, 2018

News Essentials: 5th February 2018


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

NEWS
Register Islamic marriages under UK law, sharia review says
Report endorses civil marriage alongside religious ceremony to give women legal protection. Full story: The Guardian.

Russian billionaire's ex-wife seeks record UK divorce payout
Farkhad Akhmedova yet to pay ‘a penny’ in appeal against settlement, high court hears. Full story: The Guardian.

Computer says nisi: digital divorce application on test
The government has announced it is piloting a fully online divorce application process across England and Wales which it hopes will make the process less stressful for families. Full story: Law Society Gazette.

Judge 'at wits’ end' over secure unit shortages for young people
Boy suffering racial abuse cannot be moved nearer home because of lack of places. Full story: The Guardian. See K (A Child).

Isaiah Haastrup: Baby's life-support 'can be stopped'
Doctors can stop life-support treatment to a brain-damaged 11-month-old against parents' wishes, a High Court judge has said. Full story: BBC News. See report, below.

CASES
ELO v CLO (recognition of a Nigerian adoption order) [2017] EWHC 3574 (Fam) (08 December 2017)
Application by adoptive parents for recognition of Nigerian adoption order in relation to their five year old daughter. Full report: Bailii.

B v P (Children's Objections) [2017] EWHC 3577 (Fam) (21 December 2017)
Application by father for the summary return of two children to the jurisdiction of Hungary. Application dismissed. Full report: Bailii.

A-F (Children) [2018] EWHC 138 (Fam) (31 January 2018)
Test cases relating to seven children, raising various substantive and procedural questions in relation to the interface between care proceedings and the requirements of Article 5 of the Convention. Full report: Bailii.

Kings College Hospital NHS Foundation Trust -v- Thomas and Haastrup [2018] EWHC 127 (Fam) (29 January 2018)
Application by NHS Trust for a declaration that the provision of life sustaining treatment is no longer in child’s best interests. 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.

New report from Coram Children’s Legal Centre highlights devastating impact of legal aid cuts on children


A new report published today by the Coram Children’s Legal centre (CCLC) demonstrates that, without funding for legal advice or representation as a result of changes to legal aid in 2013, some children have been left without the home, legal status, education or family access to which they are entitled.

The report Rights without remedies: legal aid and access to justice for children draws on evidence from CCLC’s legal advice services, which provide free advice and help to 20,000 children, young people or families every year. Focusing on family, education and immigration law, the report demonstrates the ways in which, without swift and reliable access to legal aid, children’s rights can be undermined. It calls for urgent changes to the government’s exceptional funding ‘safety net’ for vulnerable individuals, and for legal aid for all children in the care of local authorities or where children’s services are involved in private law family proceedings
.
Rights without remedies finds that the removal of vital areas of family, immigration and education law from the scope of legal aid has created risk of miscarriages of justice for thousands of children. This has exacerbated family breakdown, the costly and often unlawful exclusion of children from education, and destitution amongst migrant children, which places them at greater risk of exploitation.

Dr Carol Homden said:

“Since the changes to legal aid in 2013, all too many children have been unable to access the legal advice necessary for them to secure their futures. Coram Children’s Legal Centre has worked tirelessly to ensure that children have meaningful access to justice. But charities cannot, nor can they be expected to, fill the gaps left by limitations to a statutory service. We welcome the government’s review of the impact of those changes, and urge the government to take concrete steps to ensure all children and young people in the UK can be certain of access to the legal help they need.”

Elizabeth Durosinmi-Etti, a young person working with Coram who struggled to address her immigration issues because of the lack of legal aid, said
:
It is absolutely illogical to say that children are the future but to put barriers in the way of them accessing justice. There has to be a legal system put in place that works to the benefit of children and young people. Until there is, all the system will have created are children and young people who are unable to take their places in society and fulfil their potential.”

Friday, February 02, 2018

Everybody's doing it...


...talking about family law, that is. My posts this week on Marilyn Stowe’s Family Law & Divorce Blog were a guide to what they're saying. They included:

Has Lady Hale already decided the Owens appeal? - tl;dr: No.

The bailiwick shows us the way on divorce reform - Will Jersey have no-fault divorce before the mainland?

Is it right that a spouse who contributed nothing should get half? - Well, not exactly nothing (usually).

How to spot fake family law news (and where to find the truth) - It's not rocket science...

Have a good weekend.