A group of medical experts and family justice professionals have published an open letter emphasising the gaps in scientific evidence in non accidental head injury cases where a baby has suffered the triad of injuries – retinal haemorrhages, subdural haemorrhages and ischaemic encephalopathy – otherwise commonly referred to as shaken baby syndrome SBS. It urges the court to follow the course taken by Lord JusticeJudge in the Angela Cannings appeal where he concluded that in cases where the evidence relies on high ranking medical experts who disagree with one another, it is often unwise to proceed.
Egregious Failures by a Local Authority : Damages under the Human Rights Act in Care Proceedings: Northamptonshire County Council v AS and Ors (Rev 1)  EWHC 199 (Fam)
On 30 January 2015 Mr Justice Keehan handed down his judgment in Northamptonshire County Council v AS and Ors (Rev 1)  EWHC 199 (Fam). It is another case where the Local Authority having breached parties Articles 6 and 8 rights in care proceedings the court awarded damages within care proceedings.
This case concerned a newborn baby who suffered months of delay after birth. Eventually placed with grandparents he is noted to be thriving in their care. Para’s 32 and 33 are worth highlighting to any child law practitioners and serve as a helpful reminder of the remedy of damages for breaches of the Human Rights Act within care proceedings,
“32. Despite the appalling conduct of the local authority hitherto, it is right that I record that at the final hearing the local authority conceded it was liable in respect of both claims. It accepted it had acted in violation of DS’s and the mother’s article 6 and article 8 convention rights as follows:
(a) The local authority failed to take any protective action to safeguard the child despite having concerns that he was at risk of suffering significant harm between 15 and 30 January 2013, in breach of his article 6 and 8 rights. (b) Whilst the child was accommodated pursuant to section 20 CA on 30 January 2013, a decision to initiate proceedings was not made until 23 May 2013 and an application for a care order was not made until 5 November 2013. Over this period of 11 months the child was without access to any independent representation of his welfare interests and had no access to any remedy or recourse and no person was exercising parental responsibility for him, in breach of the child’s article 6, 8 and 13 rights. (c) The local authority, by its acts or omissions, caused or contributed to a series of delays in the filing of necessary evidence during the course of the care proceedings and the final evidence filed for hearing in October 2014 was inadequate and incomplete, in breach of the child’s and mother’s article 6 rights. (d) The delays and general mismanagement of the case by the local authority has been seriously prejudicial to the child’s welfare and the child’s and mother’s ability to enjoy a family life with a member of his extended family prior to November 2014, which may have irredeemable consequences for the child’s future welfare and development. Such failures were in breach of the child’s article 8 rights. (e) The child and mother were subject to a high turnover of social workers and locum social workers with conduct of his case file leading to a lack of cohesive, comprehensive management and care for a significant period of time and in breach of the child’s and mother’s article 6 rights and prejudicial to their article 8 rights. (f) The local authority failed to organise contact between the child and his mother in accordance with an explicit order of the court and the advice of the Children’s Guardian for a significant period of time and poor organisation and communication by the local authority led to various sessions of contact being cancelled. Such failures were in breach of the child’s and mother’s article 8 rights.
33. The local authority agreed to pay damages:
i) to DS in the sum of £12,000; ii) to the mother in the sum of £4,000; and iii) to pay a sum of £1000 to the maternal grandparents to assist them in their care of DS. I was helpfully referred to a number of authorities in which damages had been awarded against local authorities who had acted in breach of a child’s and/or a parent’s human rights. Having reviewed those authorities I am entirely satisfied that the damages offered by the local authority in this case are entirely appropriate. ”
Barrister Garden Court Chambers
Views expressed are the authors alone
Judicial Review on domestic violence evidence requirements fails: R (on the application of Rights of Women) v The Secretary of State for Justice  EWHC 35 (Admin)
Lord Justice Fulford and Mrs Justice Lang DBE have rejected Rights of Womens much needed challenge against the regulations (regulation 33) on domestic violence. For practitioners who work in the field of domestic violence and for people who care about gender based violence this is a disappointing and somewhat confusing blow.
Rights of Women submitted that ‘regulation 33 is ultra vires section 12(2) of LASPO 2012. It only empowers the Defendant to “make provision for the making and withdrawing of determinations” under section 9, which sets out the criteria for eligibility, by reference to paragraph 12 of Schedule 1. It is apparent from the types of provision listed in section 12(3) that the regulations are intended to be procedural in nature. However, regulation 33 imposes inflexible evidential requirements which go beyond the eligibility criteria in section 9 and paragraph 12, and which have the effect of wrongly excluding applicants from the scope of legal aid.’
Further Rights of Women submitted that, ‘regulation 33 imposes requirements or conditions which thwart or frustrate the statutory purpose, applying the principle in Padfield v. Minister of Agriculture  AC 997. It impairs the right of access to legal advice and the courts in family proceedings by women (and their children) who have suffered physical and/or psychological harm as a result of domestic violence.’
Both arguments were rejected by the Court. Although the arguments were rejected the Court did find, inter alia,
“I am satisfied that the Claimant has shown a good arguable case that some victims of serious domestic violence, who are genuinely in need of legal aid, cannot fulfil the requirements of regulation 33. Typically, victims are excluded in circumstances where serious domestic violence led to a complete breakdown of the relationship, and then, more than 24 months later, there is an application by the perpetrator of the violence for contact with a child of the family, or ongoing contact arrangements break down. By the date of application for legal aid, their evidence of domestic violence is older than 24 months, but they remain fearful of their former partner.” and
“Whilst the evidence in this case indicates that it may not be operating effectively in practice, that is a matter for the Defendant, and ultimately Parliament, to address.”
So the court have acknowledged that there are victims of domestic violence who should be able to have access to legal aid but can’t. They have said that the Government and parliament should address this problem.
The Court found that the lack of legal aid is not an actual bar to accessing the courts but of course for a victim of domestic violence having no representation and having to challenge their perpetrator in person serves as a de facto bar.
Lets hope that Rights of Women can get the support they need to pursue this case further.
Barrister Garden Court Chambers
(views expressed are the authors alone)
Anyone interested in the rights of young people should please take a moment to watch this powerful video made by young people, https://www.youtube.com/watch?v=O-WSZE4-dN4 In December 2014 JustRights ( JustRights is a coalition of charities campaigning for fair access to advice, advocacy and legal representation for children and young people http://justrights.org.uk) launched the Make Our Rights Reality campaign which includes a manifesto and petition. Their manifesto calls on the Government to improve young people’s access to the information and advice that we need to become active, responsible citizens. #MakeOurRightsReality Please watch the video, share it and petition for change https://www.change.org/p/make-our-rig…
Views are the authors alone
A report published by the Office of the Children’s Commissioner in a Child Rights Impact Assessment of changes to civil and prison law legal aid since April 2013 has highlighted the worrying impact on children and young people that legal aid changes since 2013 have had, ( available here http://www.childrenscommissioner.gov.uk/content/publications/content_873)
The first in-depth rights based examination of the impact of legal aid changes on children since 2013 shows that in 70% of private family cases one or both parties did not have legal representation compared with 54% who had it previously.
Maggie Atkinson, Children’s Commissioner for England said:
“The human cost of legal aid reforms is clearly immense. Behind the evidence in our research are countless heart rending stories of children and vulnerable young adults whose lives have been seriously affected by their inability to access legal representation.”
The Child Rights Impact Assessment found a wide range of rights in the UNCRC were likely to be negatively impacted including:
- Article 9: The right not to be separated from parents without due process;
- Article 28: The right to an education;
- Article 19: The right to freedom from maltreatment;
- Article 3: The best interest of the child being the primary consideration- due to the lack of legal support for their views and experiences to be considered by decision-makers; and
- Article 12 – the right of the child to be heard and for his or her views to be given due weight. (http://www.childrenscommissioner.gov.uk/content/press_release/content_554)
The findings confirm what those of us seeking to provide access to justice for children find on a frequent basis. It is all too often children that are suffering because of the cuts to legal aid.
Barrister Garden Court Chambers (the views expressed in this article are the authors alone)
29th September 2014
President of Family Division suggests courts should cover costs where legal aid cuts may impact access to justice
Rachael Rowley-Fox explores the suggestion made by Sir James Munby, the President of the Family Division, that courts should spend money to ensure that justice is done in the wake of the legal aid cuts.
Sir James Munby, President of the Family Division has declared in a joint judgment that the court service may have to pay for legal representation when legal aid has been refused. Munby LJ examined three separate cases – Q v Q, Re B, and Re C. He stated that:
“Each is a private law case in which a father is seeking to play a role in the life of his child, who lives with the mother. In each case the problems with which I am faced derive from the fact that whereas the mother has public funding the father does not.” Continue reading
Problem Judges should have real life lessons was the headline I read last week, although what it actually said was, “ Problem Parents ‘should have contraception lessons’ “ (Independent 11th June 2014).
In context this was one of many comments reportedly made by the current president of the Family Division, James Munby. He was talking more globally about the effective role of courts that are taking a more inquisitorial role in family cases which are heard in the Family Drug and Alcohol Court (“FDAC”). He reportedly said that in FDAC courts, “The judge is able to built up a personal rapport with the mother and father.” – “as they meet with the parents sometimes on a fortnightly basis without their lawyers”. And he went on to the reported comment about “contraception lessons” for “problem parents”.
What the article spoke to me about was the acute need for judicial diversity for the legal system to have integrity and effectiveness within our democracy. His comments highlighted the need for judges from different backgrounds from the top to bottom of our judiciary. For those not well versed in who makes up our judiciary – Munby shares the typical characteristics. ‘Sir James Lawrence Munby (born 27 July 1948) is a British judge who is President of the Family Division of the High Court of England and Wales. Munby was an undergraduate at Wadham College, Oxford, where he is now an Honorary Fellow’ (wikipedia). He does of course have the other essential attributes – a white male judge.
Imagine the worlds apart, the potential for rapport with someone who has had such an elite beginning of life for the ‘problem parent’. Is it contraception lessons?, or lessons on dealing with the pain in life of poverty, hopelessness and despair that are needed? Losing a baby and desperately wanting/needing one: is there a lesson out there in that?
It was striking to me that the comment was even made because the case where it’s a lesson in contraception that is needed must be so very very rare. But maybe if I was also of the world of the white, privileged male and an oxbridge graduate with the chums I have I too would share that view and make that comment publicly. (A fuller version of the article can be found here http://www.telegraph.co.uk/news/uknews/law-and-order/10889225/Give-contraception-to-problem-families-with-up-to-15-children-top-judge-says.html) Rebekah Wilson (views of this author alone)