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 The CPA was not repealed when the MSSCA was enacted.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.

News Essentials: 25th June 2018


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

NEWS
Baker J rejects husband’s financial remedy claim 26 years after decree nisi
Case distinguished from Wyatt v Vince. Full story: Family Law Week. See A v B, below.

Cafcass chief executive Anthony Douglas to step down
Cafcass chief executive Anthony Douglas is to leave in March 2019 after more than 15 years with the organisation. Full story: Children & Young People Now.

Supreme Court to deliver judgment in civil partnership case on Wednesday, 27 June
Steinfeld judgment will consider bar on different-sex couples entering into civil partnerships. Full story: Family Law Week.

Care crisis: Family Drug and Alcohol Court (FDAC)
Sir James Munby, President of the Family Division has written the following for Family Law. Full story: Courts and Tribunals Judiciary.

Court of Appeal emphasises that time limit for care proceedings should be extended if necessary
Family Justice Council invited to draft authoritative guidance. Full story: Family Law Week. See P-S (Children), below.

Draft revised Practice Direction 27A – Family Proceedings: Court Bundles (Universal Practice to be applied in the High Court and Family Court)
This Practice Direction supplements FPR Part 27 and comes into force on 23 July 2018. Full story: Family Law.

CASES
AB v CD & Ors [2018] EWHC 1590 (Fam) (13 April 2018)
Proceedings concerning two children born in 2010 as a result of a surrogacy arrangement, where a parental order was not available. Full report: Bailii.

S (A Child), Re [2018] EWCA Civ 1453 (21 June 2018)
Appeal by mother against summary dismissal of application under Hague Convention at the first directions hearing. Appeal allowed. Full report: Bailii.

A v B (No. 2) [2018] EWFC 45 (14 June 2018)
Application by former husband for financial remedies, following divorce in 1992. Application dismissed. Full report: Bailii.

P-J (A Girl), Re [2018] EWHC 1546 (Fam) (29 January 2018)
Application by parents for leave to apply to revoke placement order. Leave granted. Full report: Bailii.

CH v CT [2018] EWHC 1310 (Fam) (25 May 2018)
Appeal against a suspended committal order following the appellant's failure to comply with order requiring her to make her daughter available for contact. Appeal allowed. Full report: Bailii.

P-S (Children) [2018] EWCA Civ 1407 (18 June 2018)
Care orders made in respect of 2 children, under which they are living with their respective paternal grandparents. Appeal against refusal to make special guardianship orders in favour of paternal grandparents. 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.

Monday, June 18, 2018

News Essentials: 18th June 2018


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

NEWS
Legal system of child protection is in crisis, says senior judge
Sir Andrew McFarlane speaks out as review says austerity makes it hard for services to cope in England and Wales. Full story: The Guardian.

Early years cuts 'pushing more children into care' in England
Children’s commissioner says nearly half of budget is spent on 73,000 children in care system. Full story: The Guardian.

Mills v Mills appeal in the Supreme Court
Judgment now awaited in this much anticipated appeal. Full story: Family Law Week.

Adoption and care rates higher in some areas
Research obtained by the BBC and the Bureau of Investigative Journalism reveals significant variation in adoption rates across England. Full story: BBC News.

CASES
Kelly v Pyres [2018] EWCA Civ 1368 (14 June 2018)
Appeal against finding that at the date of her divorce petition the applicant wife was domiciled in England and Wales. Appeal allowed. Full report: Bailii.

MK v RP (Hague Child Abduction Convention) [2018] EWHC 1475 (Fam) (12 June 2018)
Application by father for summary return of child to Israel. Return ordered. Full report: Bailii.

GM v Carmarthenshire County Council & Anor [2018] EWFC 36 (06 June 2018)
Mother's application to discharge care order made in 2016. Application granted. Full report: Bailii.

Gee v Gee & Anor [2018] EWHC 1393 (Ch) (11 June 2018)
Proprietary estoppel case concerning a family farm where the son claimed that his father had promised that he would inherit the lion's share of the farm. The claim was made out. Full report: Bailii, via Family Law Hub.

MT v OT [2018] EWHC 868 (Fam) (20 April 2018)
Hearing of four Children act Sch. 1 applications by mother and father. 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, June 11, 2018

News Essentials: 11th June 2018


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

NEWS
Practice Guidance: Standard children and other orders
This Guidance brings to a close, at least for the time being, the Family Orders Project which I established and which has been driven forward with his usual tenacity and skill by Mr Justice Mostyn. Full story: Courts and Tribunals Judiciary.

Children’s Commissioner calls for protection of children’s rights post-Brexit
Ministers asked to reconsider withdrawal from EU’s Charter of Fundamental Rights. Full story: Family Law Week.

Revised Forms A, A1 and D50C released
Form A and Form A1 have been amended in discussion with members of the Financial Proceedings Working Party of the Family Procedure Rule Committee. Full story: Family Law.

CASES
M-Y (Children), Re [2018] EWCA Civ 1306 (07 June 2018)
Appeals by parents from findings of fact, a final care order in respect of a 15 year old girl, and interim supervision orders in respect of 3 younger children. Full report: Bailii.

L (a child) Abduction Turkey Protective Measures under Hague 96 [2017] EWHC 3797 (Fam) (01 September 2017)
Application by father for summary return of child to turkey. Consideration of sufficiency of protective measures in Turkey under Hague 96. Full report: Bailii.

S & H-S (Children), Re [2018] EWCA Civ 1282 (06 June 2018)
Appeal by mother against care order, on the ground that the threshold criteria had not been met. Appeal dismissed. Guidance given on setting out court's findings on threshold. Full report: Bailii.

Thompson v Thompson [2018] EWHC 1338 (Ch) (01 June 2018)
The question in this case was whether a proprietory estoppel operated in favour of the claimant son such as to give him an interest in the family farm and, if so, what interest. The judge held that the son made out his case. 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, June 08, 2018

New by me on the Stowe Family Law Blog


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

ONS examines data on partner abuse in the UK - Looking at the recent ONS article examining the characteristics of women who have been victims of partner abuse.

A new dawn for family law – Sir James Munby makes a call for reform - Looking at his recent speech, in which he suggested that family courts should be a ‘one-stop shop’, dealing with all of a family’s problems.

Left-behind parents: children to return home to Canada - The recent Court of Appeal case Y (Children), in which a mother failed to have an order requiring the return of her children to Ontario set aside.

A worrying picture of court modernisation - Resolution's submission to the Public Accounts Committee's inquiry into the benefits of the court modernisation programme.

Have a good weekend.

Wednesday, June 06, 2018

Divorcing parents urged to avoid extra time as World Cup arguments set to rage!


Making the right decisions for the children should be your first goal, says family charity 

 As the 2018 World Cup kick-off approaches, parents looking to divorce or separate are being advised by a specialist family charity they can easily avoid the extra time it takes to settle a separation in a family court.

“Wall-to-wall World Cup football will provoke arguments that prove the final straw for some severely strained relationships,” says Jane Robey, Chief Executive of National Family Mediation.

“There are huge delays at family courts, and when the courtroom settlement full-time whistle blows, nobody wins. You’ll be waiting for a settlement that usually suits neither parent nor children.

“You can avoid extra time by finding a professional mediator who will help you both agree arrangements for your finances, family and future, away from the heat of the court.

“Making the right decisions for the children has to be your first goal. Mediation is four times quicker than settling a divorce through a court, and it’s cost-effective and much less stressful too.

“The scale of the issue is such that you could fill Moscow’s Luzhniki Stadium, the venue for the World Cup Final, almost twice over with under-16s in England and Wales who are newly affected by divorce each and every year.

“To find a professional expert mediator in your area call 0300 4000 636 or go to nfm.org.uk/local.“

Family mediation is a voluntary and confidential process which helps people reach joint decisions without use of court. It does not try to keep people together but offers a safe, neutral place where couples no longer in a relationship can meet with a trained mediator to work out plans for the future.

(Image of Luzhniki Stadium: Mos.ru [CC BY 4.0], via Wikimedia Commons.)

Monday, June 04, 2018

News Essentials: 4th June 2018


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

NEWS
We should applaud the end of the nuclear family, says top judge
Britain should "welcome and applaud" the collapse of the nuclear family, the most senior family judge in England and Wales has said. Full story: The Telegraph.

Mother denied chance to take her case to 'court of public opinion'
Family Division president Sir James Munby, who has long argued for allowing the ‘glare of publicity’ in to family courts, says some cases should not be debated under the public gaze, as he denied a mother the chance to take her case to the 'court of public opinion'. Full article: Law Society Gazette. See G (A Child), below.

Domestic abusers still able to cross-examine victims in court
Survey finds 24% of survivors have faced ordeal in year since government promised to end it. Full story: The Guardian.

CASES
G (A Child : transparency in the family courts) [2018] EWHC 1301 (Fam) (18 May 2018)
Judgment regarding applications concerning the publication of information relating to a judgment made in private law children proceedings in 2002. 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.