Monday, November 20, 2017

News Essentials: 20th November 2017


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

NEWS
Potential client met with top family law solicitor “to conflict him out” of acting for other side
A leading family law solicitor’s meeting with a potential client was for the purpose of conflicting him out of acting for the other side, the High Court has said as it rejected an application to stop him from doing just that. Full story: Legal Futures. See S v S, below.

Surrogate mother who changed her mind must hand baby to gay couple, court rules
A surrogate mother has lost custody of her child after a court ruled he would be better placed with the gay couple who arranged for her to have the baby. Full story: The Telegraph. See H (A Child : Surrogacy Breakdown), below.

Divorcing parents could lose children if they try to turn them against partner
Measures being trialled to prevent ‘parental alienation’ feature penalties including permanent loss of contact with child. Full story: The Guardian.

Court hears transgender woman's appeal over access to her Jewish children
Lower court previously ruled the children risked greater psychological harm by being ostracised than if direct contact ceased. Full story: The Guardian.

Review to examine rise in care order applications and number of children in care
A sector-led review of the rise in applications for care orders and the number of children in care has been announced. Full story: Local Government Lawyer.

Don't abandon separating families in Brexit, say legal groups
Three influential family law bodies have today warned that a lack of progress on Brexit negotiations could leave tens of thousands of families and children in limbo. Full story: Resolution.

Domestic violence 'masks' other threats to children, Cafcass finds
Domestic abuse can 'mask' other risk factors faced by children, an analysis of serious case reviews by Cafcass has found. Full story: Children & Young People Now.

Judges reject challenge over adoption and special guardianship for half-brothers
The Court of Appeal has dismissed a case brought against Wirral Metropolitan Borough Council over whether a child should be adopted when his older half-brothers, who lived with the same couple, were to be the subject of a special guardianship order. Full story: Local Government Lawyer. See Re T (A Child: Adoption or Special Guardianship).

CASES
S -v- S (Application to Prevent Solicitor Acting) [2017] EWHC 2660 (Fam) (24 October 2017)
Application by husband for an order that the wife's solicitor be debarred from acting for her in divorce proceedings, on the basis of a conflict of interest. Full report: Bailii.

Radseresht v Radseresht-Spain [2017] EWHC 2932 (Fam) (13 October 2017)
Application by husband for, inter alia, declaration recognising divorce granted in Dubai. Full report: Bailii.

H (A Child : Surrogacy Breakdown) [2017] EWCA Civ 1798 (17 November 2017)
Appeal by surrogate mother and her husband against orders made following the breakdown of an intended surrogacy arrangement. Appeal dismissed. Full report: Bailii.

R (A Child : whether to revoke Placement Order) [2017] EWHC 2924 (Fam) (09 November 2017)
Application by mother for permission to revoke placement order. Full report: Bailii.

Re X (A Child) (Female Genital Mutilation Protection Order) (Restrictions on Travel) [2017] EWHC 2898 (Fam) (15 November 2017)
Case involving concerns over about the possibility of a 14 month old child suffering female genital mutilation should she be taken to Egypt. Full report: Family Law Week.

A Local Authority v M & Ors [2017] EWHC 2851 (Fam) (13 November 2017)
Final welfare decision concerning four children, three of whom are, or have been, severely radicalised. Full report: Bailii.

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Friday, November 17, 2017

Wednesday, November 15, 2017

Don’t abandon separating families in Brexit, say legal groups


Three influential family law bodies have today warned that a lack of progress on Brexit negotiations could leave tens of thousands of families and children in limbo.

Resolution, the Family Law Bar Association and the International Academy of Family Lawyers, have published a paper, “Brexit and Family Law,” which sets out the options for family law following the UK’s withdrawal from the EU.

The warning comes as Parliament continues to consider the EU Withdrawal Bill in committee stage today (Wednesday).

The paper states that current reciprocal agreements between the UK and other EU members states, which have evolved over decades, bring vital assurances to families across the EU. It ensures orders made in one country can be enforced in another, for example, as well as harmonising the rules for where a case can be heard.

The three organisations say this reciprocity must be maintained after Brexit, in order to provide safeguards and reassurance to those families and their children affected by divorce or separation, and involved in cross-border EU-UK family or child protection cases.

There are approximately 140,000 international divorces and 1,800 cases of child abduction within the EU each year. If family law remains unaddressed, the bodies warn, it would leave British citizens facing these issues in a position of significant vulnerability and confusion, and would lead to unfair outcomes.

Daniel Eames, who chairs Resolution’s International Committee, said:

“Families needing to go to court must know that whatever court they end up in, in whatever country, that decision will be respected by other courts.

“EU instruments which affect UK family law deal primarily with procedural rather than substantive family law - sovereignty is not the issue here - but they require full reciprocity to work.

“Without reciprocity there is a risk of a ‘one way street’ – the UK would continue to apply EU family law and be obliged unilaterally to recognise and enforce decisions of other EU member states – whereas EU member states would not be obliged to recognise and enforce our decisions.

“This is a crucial issue for tens thousands of families in the UK, and the rest of the EU. If unresolved, these families could be left in limbo.

“Our concern is that family law will go unnoticed among all the talk of trade deals, immigration and internal party politics. It may not top the government’s priorities for Brexit, but the impact of inaction would be felt by families and their children for many years to come.

Monday, November 13, 2017

News Essentials: 13th November 2017


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

NEWS
Cafcass private law demand
In October 2017, Cafcass received a total of 3,916 new private law cases. This is a 16% increase compared with those received in October 2016 an is the highest monthly demand since October 2013. Full story: Cafcass.

Care applications in October 2017
In October 2017, Cafcass received a total of 1,198 care applications. This figure represents a 4% increase compared with those received in October 2016 and is the highest monthly total for an October on record. Full story: Cafcass.

ONS statistics show cohabiting couple families are on the rise
The Office of National Statistics has released its Families and Households in the UK 2017 report. Full story: Family Law.

Parents’ alcohol abuse damaging the lives of 700,000 teenagers
The Children’s Society calls on government to address the £2bn funding gap for local children’s services. Full story: Family Law Week.

Grandmother Had To Fight Without A Lawyer To Stop Her Grandchild Being Put Up For Adoption
Gloucestershire County Council attempted to stop journalists naming the authority, but this was successfully challenged in court by BuzzFeed News and two other news outlets. Full story: Buzzfeed News. See Re ABC, below.

Munby sets aside divorce petitions because of fraud by disbarred barrister
The president of the Family Division has set aside 21 fraudulent divorce petitions produced by a disbarred barrister. Full story: Legal Futures. See Grasso v Naik, below.

Increase in number of children on protection plans
The number of children placed on protection plans is continuing to rise, government figures show. Full story: Children & Young People Now.

CASES
Shand, (A Child), Re London Borough of Barking & Dagenham v Richards [2017] EWHC 2863 (Fam) (08 November 2017)
Application by local authority for committal of child's grandmother for alleged breach of collection order. Application dismissed for procedural irregularities. Full report: Bailii.

T (A Child: Adoption or Special Guardianship), Re [2017] EWCA Civ 1797 (10 November 2017)
Appeal by guardian against making of placement order rather than special guardianship order. Appeal dismissed. Full report: Bailii.

Richardson-Ruhan v Ruhan [2017] EWHC 2739 (Fam) (09 November 2017)
Judgment in complex financial remedy proceedings, dealing with findings of fact, i.e. computation, rather than distribution. Full report: Bailii.

Hayes v Hayes [2017] EWHC 2806 (Ch) (18 October 2017)
Appeal by ex-wife against dismissal of application to set aside statutory demand in respect of various debts pursuant to a number of court orders in proceedings between her and her former husband. Appeal dismissed. Full report: Bailii.

Grasso v Naik (twenty-one irregular divorces) [2017] EWHC 2789 (Fam) (08 November 2017)
Applications by the Queen's Proctor to dismiss 21 divorce and also, in several of the cases, to set aside decrees obtained, in consequence of a conspiracy to pervert the course of justice. Full report: Bailii.

ABC (A child), Re [2017] EWFC B75 (30 October 2017)
Special guardianship order made in favour of grandmother, who was dissatisfied with the way she had been treated by LA, and wished to make her story known. Judgment dealing with issue of whether LA should be named. Full report: Bailii.

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Monday, November 06, 2017

News Essentials: 6th November 2017


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

NEWS
Report published on progress towards ratifying Istanbul Convention
Government to introduce Domestic Abuse Bill. Full story: Family Law Week.

Court of Protection Rules 2017 set out consolidated practice and procedure of CoP
2007 Rules revoked and replaced from 1 December 2017. Full story: Family Law Week.

Divorced women are missing out on £5bn in pension payments every year, says Scottish Widows
Nearly three-quarters of divorced people did not discuss pensions during divorce proceedings. Full story: Family Law Week.

Civil news: funding in international child rights of access cases
Clarification of funding arrangements in Article 21 of 1980 Hague Convention for cross-border disputes about rights of access to a child. Full story: Legal Aid Agency.

New FPR Part 3A - Vulnerable Persons: Participation in Proceedings and Giving Evidence
A new Part 3A to the Family Procedure Rules 2010 has been published, which comes into force on 27 November 2017. It makes provision in relation to vulnerable persons (parties and witnesses), including protected parties, in family proceedings. Full story: Family Law.

Daughters of brain-damaged woman win case for removal of feeding tube
Children of Mrs P have been embroiled in legal battle with patient’s sisters over the ongoing care of 72-year-old following a fall in February. Full story: The Guardian. See Salford Royal NHS Foundation Trust v Mrs P & Anor, below.

Divorce law in England and Wales increases conflict and suffering for separating couples and their children, encourages dishonesty, and undermines the aims of the family justice system
New research published today by the Nuffield Foundation shows that divorce law in England and Wales is incentivising people to exaggerate claims of ‘behaviour’ or adultery to get a quicker divorce. Full story: Nuffield Foundation.

CASES
MA v RA [2017] EWHC 2744 (Fam) (27 October 2017)
Application by father for return of child to America, where mother may have defence, but second child resides with father and mother will have to return to America to resolve position. Full report: Bailii.

N v J (Power to Set Aside Return Order) [2017] EWHC 2752 (Fam) (03 November 2017)
Application by mother to set aside order requiring her to return children from the USA. Full report: Bailii.

ES v OS [2017] EWHC 2735 (Fam) (31 October 2017)
Application by father for return of children to Lithuania. Application adjourned for father to attend, he having on a previous occasion failed to keep a promise not to take the children from the mother upon her return. Full report: Bailii.

S (Child As Parent: Adoption : Consent) [2017] EWHC 2729 (Fam) (02 November 2017)
Adoption of child of 14 year old mother, raising issue of whether the mother was competent to consent to the adoption. Full report: Bailii

Akyuz v Akyuz & Anor [2017] EWHC 2726 (Fam) (25 October 2017)
Application by woman of Turkish heritage for a declaration of parentage, essentially to establish whether a man who died in Turkey in 2016 was her genetic or biological father. Full report: Bailii.

D (A Child) [2017] EWCA Civ 1695 (31 October 2017)
Appeal in proceedings concerning issue of deprivation of liberty of 16 year old placed in a residential unit. Full report: Bailii.

J (A Minor : Revocation of Adoption Order) [2017] EWHC 2704 (Fam) (30 October 2017)
Judgment revoking adoption order, in case in which there was "a complete absence of due process and a wholesale abandonment of correct procedure and guidance". Full report: Bailii.

LG (Re-opening of Fact-finding), Re [2017] EWHC 2626 (Fam) (03 October 2017)
Appeal by mother in private law proceedings against refusal of application for the reopening of findings made by magistrates earlier in the proceedings. Appeal allowed. Full report: Bailii.

Salford Royal NHS Foundation Trust v Mrs P & Anor [2017] EWCOP 23 (30 October 2017)
Application to declare the best interests of a 72 year old woman who, following a fall in December 2016, now lacks the mental capacity to communicate her own wishes and feelings in respect of life sustaining medical treatment. Full report: Bailii.

GP (A Child) [2017] EWCA Civ 1677 (30 October 2017)
Appeal by mother against order that child should be returned to Italy, following her wrongful abduction. Appeal allowed. Full report: Bailii.

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Tuesday, October 31, 2017

Charity: Who will consider Brexit’s impact on separating families & children?

The impact of Britain’s exit from the EU on divorced and separating families and children has ‘barely registered at government level’, says a national family charity.

Jane Robey
Whilst lawyers have already had an opportunity to share concerns with the government about the legislative fall out of Brexit, National Family Mediation says no consideration has been given to the perspective of the ‘ordinary citizen’.

Jane Robey, the charity’s CEO, says: “UK residents have come to view the free access to the whole of the EU as simple and straightforward. They can choose to go and live in Europe for work, or for a different lifestyle. Most don’t consider themselves to be emigrating, or being very far from their extended families. Cheap and easy access to flights makes staying in contact easy. But Brexit is set to change all that. 
 
“The Justice Select Committee’s inquiry ‘Implications of Brexit for the justice system’ was right to invite comment from legal professionals. But moving forward it will be crucial to consider the perspective of ‘ordinary’ citizens too. 
 
“Who will get into the minds of the average separating couple to see the impact of Brexit from their perspective? Their first thought when their family disintegrates won’t be “Would I get a better settlement if I were to file for divorce in the UK or Belgium?” They are more concerned with the issues immediately at hand:

“Shall I stay here or return to my country of origin?”
“Can I work where I am to support myself and the children?”
“Will we be able to share our finances until we get this sorted out?”
“Will the rent or mortgage be paid?”
“How will I still be able to see the children when I am in a different country in a disjointed Europe?”
 
“Whilst we’re in the EU, when a relationship breaks down they may make decisions for one person to return home to the UK with the children, viewing the maintenance of good post-separation parental relationships as fairly straightforward.
 
“But what happens after Brexit? Changing boundaries and jurisdictions will create unforeseen obstacles. Will those families still enjoy the simplicity of maintaining their separated relationships and, more importantly, their relationships with their children?

“It’s possible that children living in countries that remain in the EU will face significantly more challenges and barriers to maintaining contact with their UK-based parents as we disentangle from the EU.
 
Setting us back to pre-Children Act days

“Advances in the way British family courts manage applications for contact and residence for children mean there is now more emphasis on the children’s rights to see both parents. But Brexit could set family life back to pre-Children Act days. 

“Will we see 21st century living taking place elsewhere, with UK families plunged back to a 1950s-type insular existence, regretting the loss of our colonial loss of power? 

“Will it narrow and limit the next generation’s opportunities to travel relatively freely to access different cultures and work opportunities?
 
“There’s a genuine danger we could see children thrown back to a time where access to one of their parents is much reduced, with immigration red tape a prohibiting factor to helping those children keep in touch. It could mirror the situation families currently face where the children have been removed to non-EU and non-Hague Convention countries. Absence of legal reciprocity means that too often children effectively lose one of their parents.
 
“Law makers have myriad issues to contend with as the Brexit minefield is negotiated. But on the face of it the impact on separating families, particularly children, seems to have barely registered at government level. It’s time for the government to start considering the impact of Brexit on divorcing and separated families.”

Monday, October 30, 2017

News Essentials: 30th October 2017


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

NEWS
Clampdown on child maintenance cheats
New powers to stop parents avoiding paying child maintenance that they owe have been announced. Full story: Department for Work and Pensions.

President invites FJC to consider covert recording of conversations for use in family proceedings
Detailed analysis of the rules of admissibility needed. Full story: Family Law Week.

HMCTS sets course for online financial remedy applications
CEO Susan Acland-Hood outline plans in her latest blog post. Full story: Family Law Hub.

Two useful briefing notes on 2012 child maintenance scheme published
The House of Commons Library has recently published two useful, and free, briefing notes explaining the calculation and rules relating to the 2012 statutory child maintenance scheme. Full story: Family Law Week.

Consultation launched on revised ‘Working Together to Safeguard Children’
Guidance changed to reflect Children and Social Work Act 2017. Full story: Family Law Week.

Police recorded domestic abuse continues to rise
4,246 offences of coercive control recorded in year ending March 2017. Full story: Family Law Week.

CASES
Alireza v Radwan & Ors [2017] EWCA Civ 1545 (12 October 2017)
Appeal by W against financial remedies order, considering whether the judge was right to regard her future inheritance from her father as a resource that she was likely to have in the foreseeable future; and whether she had been wrong in making an order granting W an occupational interest in the former matrimonial home rather than ordering H to pay a lump sum to W sufficient to enable her to buy a property of her own. Full report: Family Law Week.

Kent County Council v A,B,C and D (children) (Weight to be attached to evidence of child after flawed ABE interviews) [2017] EWFC B72 (01 March 2017)
Care proceedings concerning 4 children, in which the police had failed to observe ABE guidelines whilst interviewing one of the children. Full report: Bailii.

The Royal Borough of Kingston-Upon-Thames v SK (A Child) & Ors [2017] EWHC 2636 (Fam) (31 January 2017)
Application by local authority for, inter alia, a special guardianship order in respect of a child of unknown age and parentage. Full report: Bailii.

The London Borough of Brent v D & Ors (Compliance with Guidelines on Judges Meeting Children) [2017] EWHC 2452 (Fam) (05 July 2017)
Final hearing in care proceedings concerning 3 children, in which the issue of compliance with guidelines on judges meeting children was raised. Full report: Bailii.

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Make no fault the default, national family justice organisation urges Government

Nigel Shepherd
Resolution, the national family justice organisation, has welcomed the publication of landmark new research which highlights the inherent problems in our current fault-based divorce system.

Finding Fault, written by Professor Liz Trinder and published by the Nuffield Foundation, is the culmination of a piece of academic research into the state of current divorce law in England & Wales. The research took place over two years and heard from over a thousand divorcees, as well as family lawyers and judges.

Resolution has campaigned for the introduction of no fault divorce for decades, and today hailed the research as “a wake-up call for politicians.”

Speaking ahead of the report’s launch in Parliament tonight (30 October), Resolution’s Chair Nigel Shepherd said:

“This authoritative, academic research should eliminate any doubt from government that the law needs to change. Fault-based divorces don’t reflect the reality of relationship breakdown for the majority of couples and do nothing to help them deal constructively with the consequences – indeed they often have the adverse effect of inciting additional conflict between separating partners.

“It’s time to make no-fault the default.”

“The current system, which is unchanged since the beginning of the 1970s, encourages a charade at best, and at worst actively drives a wedge between couples who might otherwise be able to remain on good terms during a divorce. This is bad for them and bad for their children. It is also wholly at odds both with government rhetoric, and with the approach Resolution members take under our Code of Practice.

“At present, many divorcing couples are forced to play the ‘blame game’ – citing examples of unreasonable behaviour or adultery, long after the relationship has broken down, simply to satisfy an archaic requirement on the divorce petition which has its roots in laws drawn up more than a generation ago.

“As the report rightly says, this is an often painful, and sometimes destructive, legal ritual with no obvious benefits for the parties or the state.”

The study adds further weight to the recent calls for no fault divorce from senior figures such as the new President of the Supreme Court, the President of the Family Division, the Chair of the Marriage Foundation, and the Family Mediation Task Force.

It also comes almost a year after Resolution’s Lobby Day, which saw 150 family lawyers bring the campaign for no fault divorce to Parliament.

Nigel Shepherd added:

“Last year I joined with Resolution members from across the country to highlight to MPs from all parties the need for change. We were delighted by the almost universal positive response we received.

“It is a source of great pride that so many have joined the clarion call to remove fault from the process. It is also a source of much frustration that we are still here calling for change.

“The question is: in the face of such overwhelming support, what is the government waiting for?

“With tens of thousands of couples divorcing each year, every day the government delays will see hundreds more forced into a conflict-driven and often destructive divorce system.

“Until this changes, there is a real risk of lasting damage being done to those individuals and – crucially – any children they may have.”