Monthly Archives: January 2014

New contributor – welcome paralegal Hayley Crossman

Hayley

This is my first post on the Trainee Blog at Stowe Family Law.  I have written pieces for the firm’s Marilyn Stowe blog before but I thought I would use this guest space to talk about studying whilst working full time.

Working full time and studying part time is something which is not going to be unknown for many and those who have undertaken such a task will understand what is required in order to meet the needs of both work life and study life; time management being the key but there is of course much more to it.

I am currently studying for a Masters in Child Care Law and Practice at Keele University and am now working on my dissertation, which I have decided to write on contact with children.  Working within private law, there is never a shortage of examples of contact proceedings and part of the job of a paralegal is to help undertake research on different points of law, emerging case law and amends to legislation. Since starting work at Stowe Family Law in April, after leaving the Family Law team at the Department for Education, I have seen the legislation and policy which I had been working on alive in the real world.  This opportunity to see the law in practice has been vital to the work I am doing outside of Stowe and has fed in to areas of research for my dissertation.  A key part of studying in a work related area is to take every opportunity to learn on the job.  Those studying the LPC whilst working will understand that the working day is full of opportunities to practice the core skills taught on the LPC course.

Zoe’s recent post on the enforcement of Contact Orders is an area which is currently under consideration and is key to any discussion on contact.  Needless to say, it is a news article which I am sure I will refer to within my dissertation.

But for today I want to look at M (Children) [2013] EWCA Civ 1147 which considers the appeal against an order refusing the father’s right to contact with his children given that there had been a history of extreme domestic violence.  So, on my train ride home (again, making the most of the time available to me) as I look out of the window and with this case in mind, I will be considering the following: contact may not always be appropriate but what has to be proven to deny it completely; and with indirect contact options available, should a child be denied access to a birth parent completely?

Hopefully, at some point I will be able to argue this question with more certainty and authority but for now it is a starting point.  I hope future blogs I write will bring out other issues to consider and authorities to influence discussions in this area.  Every day is a school day, and not just for trainee solicitors and paralegals.

Medical Consent and Refusal Cases

 

StethoscopeI guess I should start with a Happy New Year to you all, and wish you all the best for 2014. I am back in the office after a lovely wee holiday back in Scotland and it is time to buckle down and get back to work. As soon as I arrived into the office today I was handed a brief that I had to compile for counsel and, oh my, it is a big one. So my day is off to a flying start.

While I was back at home my best friend asked me for some help with her essay for university. Now I am no expert, but I didn’t see how I was going to be able to help a medical student with an essay, until she told me that she needed some advice about the law surrounding child law cases in relation to consent and refusal of medical treatment. Well, she certainty came to the right person, and I immediately went ruffling through my child law notes from last year to help her.

This area of law concerning children’s rights in medical cases is somewhat complex and the leading case in this area is Gillick v West Norfolk & Wisbeck Area Health Authority [1986] AC 112. This case concerned a mother who sought a declaration that it would be unlawful for a doctor to prescribe contraceptives to a girl (in this case her daughter) under the age of sixteen without her parent’s consent or knowledge.  The declaration was refused and it was held that as long as the child is Gillick competent then she can consent herself. Lord Scarman stated that capacity does not turn on age, but whether the individual has “sufficient understanding and intelligence to enable her to understand what is being proposed.”

This would seem quite simple- child consents to treatment; child allowed treatment, child refuses treatment; child not given treatment, as long as the child in question is Gillick competent.  Essentially, the words “simple” and “the law” are never seen in the same sentence and so this little outline is not the case.

For instance, in Re R [1991] 4 AII ER 177, a 15 year old girl refused antipsychotic treatment for a mental illness. The child, at the time of refusal, was deemed to be rational, yet the local authority applied for wardship under which the treatment could be administered without the girl’s consent.  The girl was deemed incompetent by the High Court judge, and the Court of Appeal upheld this ruling.  Lord Donaldson stated that there was a distinct difference between capacity to consent and capacity to refuse treatment. He stated that although consent of either the competent child or parents would suffice, in relation to refusal – only refusal of both would be valid (in this case the local authority were in place of the parents).  This decision contradicts the interpretations of Gillick, where it was assumed that the refusal of a competent minor would be equally as valid as a minor’s consent to treatment.

This is just one of the many cases where a child’s refusal of treatment has been overridden by the court, another example is Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1992] 3 WLR 758.

Therefore, the line is blurred when it comes to determining if a child, who may be Gillick competent, can refuse treatment. However, it must be noted that the court will always act in the best interests of the child.

It can even be the case, where a child is too young to consent to treatment and her parents refuse treatment that the court can overrule the parents’ decision. This recently occurred in Re TM (medical treatment) [2013] EWHC 4103 which concerned a 7 year old child who was born prematurely and had cerebral palsy and other medical and developmental complications. Due to the problems she suffered, she underwent a gastrostomy for the purposes of hydration and nutrition. The first PICC (catheter for these purposes) had to be removed due to infection and the parents became resistant to it happening again and to consequent procedures being performed by the hospital.  A without notice application was made to the court to allow a second PICC. The judge granted a declaration that it would in the child’s best interest for a further PICC to be inserted. In this case, the court was able to overrule the decision of parents regarding consent to medical treatment.

Children’s participation in health care decision-making is encouraged; however there is a lack of clarity as to whether competent refusal or the best interests of the child should prevail. This could arguably be extended to the refusal of parents where the child is too young to make an informed decision.

What do you think? Should a competent child be able to refuse medical treatment?

And my best friend just called to tell me that she “hates how law has no clear answer.” And with that, I bid her good luck.

Image by by surroundsound5000

Legal aid and Child Abduction

6349869019_0193643b83_mMr Justice Holman has called for changes to legal aid in regard to cases of child abduction in a recent public judgment. The full Judgement will be released mid to end of January and will make an interesting read. The Judgement focused on the current issue of legal aid in cases of alleged international child abduction. Mr Justice Holman stated that ‘in cases where a Cafcass report is ordered, an initial grant of public funding should be made to the respondent and then reviewed upon receipt of the report’ (Holman J calls for changes to legal aid in child abduction cases, Family Law Week, Miranda Mourby).

The case in question concerned a father and mother of Lithuanian origin who spoke very little English. The father had employed a firm of solicitors and counsel to represent him at the final hearing, the mother on the other hand had approached solicitors, but the Legal Aid Agency was not due to respond to her request for legal aid within the timetable.

The mother appeared at the hearing unrepresented informing the court that her legal aid application had been unsuccessful; she had not passed the merit test. At the time the Legal Aid Agency made the decision to refuse legal aid the ordered Cafcass report had not been completed. Upon receipt of the Cafcass report the mother made an appeal to the Legal Aid Agency, however the Legal Aid Agency had not had time to consider the mothers appeal prior to the hearing. The mother was therefore faced with the possibility of having to represent herself with little knowledge of the English language let alone English law. However, Holman J stepped in. He allowed the case to be adjourned pending the outcome of the mothers appeal to the Legal Aid Agency, with Counsel for the father agreeing that there may be a risk of unfairness had the hearing continued.

At this point Mr Justice Holman stated that ‘child abduction cases were some of the most serious cases to come before the family courts. While some may be relatively straightforward for the experienced High Court judges, others (such as the present case) were finely balanced and the court would need as much skilled help as possible in reaching its decision, particularly given the gravity of the welfare issues at stake.’ (Holman J calls for changes to legal aid in child abduction cases, Family Law Week, Miranda Mourby). Mr Justice Holman’s suggestion is that, in accordance with the 6 week timetable, the Legal Aid Agency should make an interim grant of public funding which would then be reconsider upon receipt of the Cafcass report. This would allow the courts to avoid situations like the one described above and would prevent any individual in such a serious case from having to self-represent with the risk of receiving an unfair trial within the realms of Article 6 of the European Convention on Human Rights. With international family law cases constantly increasing, in particular international child abduction, it is vitally important that the above is addressed quickly and effectively.

Photo by MegaBu7 via Flickr under a Creative Commons license

Time for a visit to London

7202927062_aa0b198fbd_mYesterday I was in London for a conference with counsel. For those of you who don’t know, a conference with counsel is a meeting which can be held for various reasons, but is generally held so that the barrister can meet the client and discuss the Client’s case. It allows the barrister to seek any further information, assess the prospects of success with the client, and detail any steps that need to be taken in order to prepare for the next stage.

Yesterday was a long day to say the least; it started with a 7:30am train journey and didn’t see me getting home until around 9pm. That being said it was extremely interesting and a definite learning curve for me. It also gave me the chance to introduce myself to my colleagues in the London office, many of whom I had only spoken to on the phone previously. The London office is situated on the charming Fulwood Place, just off of Grey’s Inn Road and is a thriving hub of activity.

On my return to the Harrogate office today I knew I would have a fair amount of work to do. However, due to my absence yesterday and following on from yesterday’s conference I was more than a little busy. I had numerous emails to address, correspondence to send out, clients to meet, forms to fill, courts to contact, research to conduct, the list goes on. I now sit in my office writing this blog at 6:30pm. I have just finished sending my final urgent emails and contacting chambers and I have a few non-urgent jobs outstanding, which will roll over to tomorrow. As a trainee I am finding that I am becoming more and more skilled at juggling my commitments. As I am sure any solicitor will tell you, the job doesn’t simply finish at 5pm. I have known many solicitors stay way passed 5pm and on in to the night and trainees are not immune to this. There are many skills you need as a trainee, all of which are important, but an ability to manage your time, more than a little determination and a lot of commitment are all must haves, but the rewards are there for the taking.

Next week I will be attending my first Professional Skills Course, a set of three core courses and 24 hours of electives that are compulsory should you wish to complete your training contract, and I will admit that I am a little nervous by the exam looming at the end of the first core course. However, working in such a thriving firm, meeting the clients we represent and having the opportunity to gain such interesting and wide ranging experience here at Stowe Family Law makes the late nights, early mornings, and exam stress all worthwhile.

For now I am off home, I think an early night may be in order because tomorrow promises to be just as busy, if not busier, than today.

Enforcement of Contact Orders

231524220_027b7431a1_mIt is my first day back following New Year and as expected my desk was full on arrival at the office this morning. I hit the ground running and I was immediately on the phone to Harrogate County Court and then proceeded to deal with the numerous emails that had filled my inbox while I was away. Following this I had a brief to counsel sat on my desk and two new client appointments lined up for the afternoon. Today promised to be a hectic day and it kept to its promise.

As I worked on a child matter regarding a contact order this afternoon I was reminded of a research paper I read recently regarding enforcement of contact orders and whether adequate punitive sanctions are currently in place. Published at the end of December 2013 the research paper, entitled Enforcing Contact Orders: Problem-solving or punishment?, was written by Liz Trinder, Alison Macleod, Julia Pearce and Hilary Woodward, from Exeter University, and Joan Hunt, from Oxford University.  It is the first piece of empirical research in the area of enforcement of contact orders and it will play an important role in informing policy makers in regard to the nature of enforcements, it’s applicability and success rate.

The research took a national sample of 215 enforcement applications made between March and April 2012 and evaluated the cases ‘on a range of variables including efficiency, robustness, safeguarding, children’s participation and addressing conflict.’ (Enforcing Contact Orders: Problem-solving or punishment? by Liz Trinder, Joan Hunt, Alison Macleod, Julia Pearce and Hilary Woodward).

The research found that ‘courts typically handled cases fairly speedily, with most cases getting into court quickly and finishing earlier than at index stage. … A minority of cases experienced problems due to the non-cooperation of the parties. … Courts were judged to be sufficiently robust in the great majority of cases, given that few cases involved implacable hostility. There were as many examples of courts being too robust as being not robust enough. The approach to safeguarding was less satisfactory, with only half of risk cases rated as having safeguarding issues dealt with appropriately. There was evidence that safeguarding issues were marginalised by a strong presumption of contact and by misinterpreting the issues in the case as mutual conflict or implacable hostility. Children’s participation varied significantly. Many children were too young to participate but only half of children of eight years or more were consulted. There were examples where the final order may have been contrary to the reported views of children who were not involved. Where older children were consulted they often appeared highly influential. The courts attempted to address parental conflict by providing new or more detailed orders, recitals that urged parents to work together and by referral to the Separated Parent Information Programme (SPIP). The attempts to address conflict were in most cases quite modest and in others entirely absent. There were very few cases where children received any direct help or support despite widespread concerns about emotional abuse resulting from prolonged exposure to litigation.’ (Enforcing Contact Orders: Problem-solving or punishment? by Liz Trinder, Joan Hunt, Alison Macleod, Julia Pearce and Hilary Woodward).

One year after the enforcement application two thirds of cases had been closed with no further applications. One tenth of the cases remained open and one tenth were subject to a new application to court. The research also found that the ‘courts made very limited use of the new provision for unpaid work, primarily as few cases required a punitive approach. Courts made greater use of unpaid work as a threat – whether in the form of assessment or as a suspended order – rather than as a punitive sanction. The assessment – only and suspended orders did have higher success rates than the activated orders. Only one activated order achieved a positive outcome in ensuring compliance.’ And that ‘a fifth of cases included an application for financial compensation where there had been expenses incurred as a result of non-compliance. Many of these were for the court application fee of £200 although parliament had intended compensation to be targeted on travel and accommodation expenses. Few of the applications appear to have been successful although our records are incomplete.’ (Enforcing Contact Orders: Problem-solving or punishment? by Liz Trinder, Joan Hunt, Alison Macleod, Julia Pearce and Hilary Woodward).

The research concluded that adequate punitive sanctions are in place and used, in most cases, appropriately. Further, the sanctions were in most cases successful in securing compliance with the order. However, the research does point to a number of failings that need to be address. It is obvious that further empirical research is needed in the area to fully inform those in charge of policy making. When this will come is yet to be seen, but it is clearly an area that needs addressing.

The full research paper can be found here: http://www.nuffieldfoundation.org/sites/default/files/files/Enforcement%20report%20final%20Dec%202013.pdf