Children giving evidence in family courts

While over 1000 children under the age of 10 give evidence to the courts in England and Wales each year, very few do so in the family courts. Ian Peddie QC argues that the interests of justice would be well-served if more did so.

The presumption against children giving evidence in the family courts was removed by the Supreme Court in March 2010 in Re W (Children) [2010] UKSC 12. This led to the Family Justice Council producing its Guidelines in relation to children giving evidence in family proceedings. Continue reading

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‘Agreed Facts and Reasons’ post NL

Re NL (A Child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam) is a recent case in which Mrs Justice Pauffley is critical of a practice which had developed in a Family Proceedings Court of the Local Authority being expected to provide draft facts and reasons for use at hearings.
“Equally and just as importantly, it is difficult to view the Justices as having been independent and impartial if, as happened here, they simply adopted the local authority’s analysis of what their Findings and Reasons might comprise. The Court of Appeal has recently made clear that the wholesale incorporation of such a draft is impermissible: see Crinion and anor v IG Markets Ltd [2013] EWCA Civ 587. As Sir Stephen Sedley observed,

“Unequivocal acceptance of one party’s case has always posed a problem for judges. To simply adopt that party’s submissions, however cogent they are, is to overlook what is arguably the principal function of a reasoned judgment, which is to explain to the unsuccessful party why they have lost…. (T)he possibility of something approaching electronic plagiarism is new, and it needs to be said and understood that it is unacceptable. Even if it reflects no more than the judge’s true thinking, it reflects poorly on the administration of justice: for … appearances matter.”

69. Just because there may be tacit acceptance on the part of many professionals within the family justice system that the practice which operated here exists, that does not mean it is right. It is patently wrong, must stop at once and never happen again.”

A query arose in a recent case of a colleague as to whether or not a direction to provide Facts and Reasons in a case where an agreed private law order was to be made. In discussion we thought NL applied equally to agreed orders. The Family Proceedings Court agreed although it slows down the Court list, it must be right that all orders are properly justified by the Court.

What now for agreed threshold criteria?

Amina Ahmed

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Stop Child Trafficking | Our Campaigns | UNICEF UK

Stop Child Trafficking | Our Campaigns | UNICEF UK.

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“Beyond Argument” – Siblings Should Be Kept Together In Their “daily life” Blog by Rebekah Wilson

Within a space of 2 weeks I’ve been involved in 2 cases where a Local Authority sought to separate siblings in questionable circumstances. Thankfully robust Judges (in my view) helped the relevant Local Authorities back to sensible thinking. But it got me thinking about the rights of siblings to reside together, its import and how to protect it within difficult care and private law proceedings. So here is a short run down including some helpful obiter dicta in the groundbreaking case concerning habitual residence, in the matter of LC (Children) (No 2), 2014 UKSC. But we can start in 1988 (the year the Iran – Iraq war ended, the winter Olympics were hosted in Canada and the movie Twins was one of the must see),

“it really is beyond argument that unless there are strong features indicating a contrary arrangement that brothers and sister should, wherever possible, be brought up together, so that they are an emotional support to each other in the stormy waters of the destruction of their family..”

So LJ Purchas stated so eloquently in, C v C (MINORS:CUSTODY) 1988 2 FLR 291 at page 302. A private law case, this remains good authority and sets out the clear starting point.

Few waters could be more stormy for siblings than the removal from their natural parent or parents. Section 22C(8) of the Children Act 1989 provides that there is a specific duty upon the Local Authority when looking after a child (whether or not in care), when also looking after a sibling (whether or not in care) to accommodate them together so far as is reasonably practicable and consistent with their welfare. To place siblings together is a duty, and a failure to comply with this requirement, without good reason, may leave that failure open to challenge by way of judicial review ( Hershman and McFarlane Children Law and Practice F-48).

The recent Supreme Court Judgment, in the matter of LC (Children) (No 2), 2014 UKSC 1 provides some powerful dicta which helps underline the import of the sibling relationship in that case. The case of course concerned the habitual residence of four children (‘T’ a girl aged 13), ‘L’ ( a boy aged 11), ‘A’ (a boy aged 9) and ‘N’ (a boy aged 5) whose mother brought a case against the father for their return to Spain. They had moved to and resided in Spain for some months in 2012. The Supreme Court found that ( the older sisters) T’s assertions about her state of mind during her residence in Spain in 2012 were relevant to a determination whether her residence there was habitual and set aside the finding of habitual residence in respect of all 4 children.

Giving the leading Judgment Lord Wilson says;

“ But there is another feature in play: it is the presence of their older sister, T, in the daily life of all three of the boys. Ms Vivian described the four children as a very close sibling group. There was a solidarity in the presentation of the three older children to her.” (Para. 43)

And concludes,

“By a narrow margin, I find myself persuaded that the proper course is to set aside the finding of habitual residence in respect also of the three boys so that the issue can be reconsidered in relation to all four children.” (In the matter of LC (Children) (No 2), 2014 UKSC 1 at Para.43) .

Lets hope , that where they should, all siblings get to enjoy each other in their daily lives.

Rebekah Wilson
Garden Court Chambers
11th February 2014

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Family Law Reform: Some Missing Views ? by Rebekah Wilson

There are a lot of important views from the top to consider in family law at the moment, View from the President’s Chambers (available online). And more recently an interview with the President himself in Counsel Magasine (Justice Delayed is Justice Denied, Chris McWatters talks to Sir James Munby, Counsel October 2013). The views of Sir Justice Munby are clear and forcefully put. In essence they are, swifter conclusion of care cases- 26 weeks and a streamlined single family court. Who can disagree with him that , “justice delayed is justice denied” (Counsel interview).

However I fear there is another view not being talked about so forcefully within the reform of family justice and in particular care proceedings. These are the views of the current Lord Chancellor, Mr Chris Grayling. The Government has decided that the current fixed fees in family cases, including public law, do not provide value for money and they will be introducing a further 10% reduction (https://consult.justice.gov.uk/digital communications/transforming-legal-aid-next-steps/supporting_documents/transforminglegalaidnextsteps.pdf). 10% may not seem huge to an outsider. But to a solicitor practising in the area, it is a margin which may well mean that they can no longer provide that service. There has been no increase to their fees in this area since 2001 only reductions. The concern is that without considering this view in the quest to speed up care proceedings then justice itself is not delayed but possibly absent altogether.

Barristers and Solicitors who undertake care cases, those cases that involve the most draconian order of all, compulsory adoption and often acting for some of the most marginalised in society, are being asked to do more and more for less and less. A further 10 % reduction to solicitor’s hourly rates in care cases and a further reduction to experts fees as envisaged by Transforming Legal Aid (available online) will mean that the necessary dedicated expertise of the professions will not be available. As Lord Neuberger rightly points out, “.the great majority of lawyers who do publicly funded work do not make very much money.. (Justice Tom Sargant Memoriall Lecture 2013). And for those of us who can’t afford to offer our professional expertise as a hobby the further cuts to legal aid may be fatal. Fatal not to the lawyers ( we can do something else) but fatal to the children whose lives are being determined.

Sir James is of course absolutely right to rid children at the centre of care proceedings of any delay to the proper outcome of their case. He recently observed that,

“We do not envisage that proper compliance with what we are demanding, which may well impose a more onerous burden on practitioners and judges, will conflict with the requirement, soon to be imposed by statute, that care cases are to be concluded within a maximum of 26 weeks” (Para. 44, Re B-s (Children) (2013 EWCA Civ 813). The problem is that the burden is being placed on practitioners in the context of drastic cuts to legal aid and so the ability for proper compliance by expert professionals is hard to envisage.

For a powerful reminder of what is at stake in these cases,

“family ties may only be severed in very exceptional circumstances and…everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing” ( YC v United Kingdom (2012) 55 EHRR 967, Para 134).

And so I conclude with a sum. The total basic fee for a solicitor of a care case involving one child £2237.00 – 10% ( a 10% reduction to that – on top of no fee increase since 2001) + 26 Weeks (the need for speed) = INJUSTICE ? We should consider some other numbers too, the rates of adoption breakdowns and failed special guardian placements. And most important of all we should look to the children affected by these reforms and ask them what their view is.

Rebekah Wilson (Garden Court Chambers)
24th October 2013
The view expressed in this article are the views of the author alone.

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Re BS and Experts

The recent case of Re B-S is clearly having a significant impact on the courts approach to care proceedings, and in particular whether or not they should rigidly stick to the 26 week rule. It also seems to me that Re B-S must have an impact on the courts approach to part 25 applications for experts.

With the introduction of the ‘necessary’ test in part 25 applications, it has become much tougher to succeed in those applications. But if one looks at Re B-S, and in particular paras 25 to 28, which make reference to Lord Neurberger’s speech in Re B, it is clear that where the local authority’s care plan is for adoption, then the court is under a duty to consider all options in order to try and keep the child in the care of the birth family before making a placement order. Of course it is unlikely that on day 12 of the new PLO, that that the care plan will be for a placement order. But given the current climate where adoption is perceived as a preferable alternative to care, then it must be anticipated that this is a likely position that the local authority will take. So when making a part 25 application that may not on the face of it seem necessary – for instance where a local authority have conducted a pre birth assessment of the parents and concluded they should be ruled out, Re BS should come into play, especially if the initial assessment isn’t as thorough as Re BS indicates the quality of the local authority evidence should be in considering placement options.

It is also clear that Re B-S assists in applications for an ISW assessment of SGO applicants, even if they come forward as a late stage – as ‘the court “must” consider all the options before coming to a decision (para 27).

Chris McWatters

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