Category Archives: Legal Life

Jurisdiction: Children and their Domicile of Origin.

10012162166_cde34d427e_mIn March 2013 there were 68,110 children in local authority care in the United Kingdom. Between the years of 1999 and 2011 there were a total of 233,934 adoptions worldwide, with children under the age of 1 year making up 40% of these adoptions. Just over 28% of the worldwide adoptions were from China.[i] In addition to this it is estimated that every year within the UK over 50 babies are left abandoned. The BBC recently wrote an article[ii] in this regard stating that campaigners are calling for the introduction of ‘baby hatches’ across the UK where ‘desperate mothers can leave their babies in safety’, this being something that has been ‘widely used in European countries, since 1999 when they were first used in Germany.’

Adults, who were adopted as children, are often left with the question of who their biological parents are. In the UK, once an adopted child attains the age of 18 years they have a right to apply to see their birth records under s.60 of the Adoption and Children Act 2002[iii]. Furthermore they have the right to join the Adoption Contact Register, which is aimed at helping adopted people gain the contact details of birth relatives who are also registered. There are however two competing rights in play here: those of the adopted child and those of the biological parents. Both individuals have rights under Article 8 of the European Convention of Human Rights, ‘the right to respect for his private and family life.’ Therefore, the right of the adoptive child to access information pertaining to the identity of their biological family is juxtaposed with the right of the biological parents to anonymity and privacy. At present an adopted child has no legal right to access any information pertaining to their birth parents aside from the information that may be found on their birth certificate.

With the growing number of national and international adoptions and with the influx of children in local authority care in the United Kingdom it is impossible to ignore the question of jurisdiction and in particular how the domicile of origin of these children is decided and defined. The jurisdiction of a court in England and Wales to entertain matrimonial proceedings is governed by the Domicile and Matrimonial Proceedings Act 1973[iv], s.5(2) which states:

‘The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if)-

a)      The court has jurisdiction under Council regulation (EC) No.2201/2003- ‘Brussels II Revised’ or

b)      No court of a Contracting States has jurisdiction under the Council Regulation and either of the parties to the marriage is domiciled in England and Wales on the date when the proceedings are begun.’

In the recent case of Ray v Sekhri [2014] EWCA Civ 119[v] Lord Justice McFarlane stated that ‘Holman J rightly relied upon paragraph 8 of the judgment of Arden LJ in Barlow Clowes International Limited v Henwood [2008] EWCA Civ 77[vi] as providing a convenient summary of the relevant principles of the law of domicile in the following terms:

“The following principles of law, which are derived from Dicey, Morris and Collins on The Conflict of Laws (2006) are not in issue:

(i) A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home. A person may sometimes be domiciled in a country although he does not have his permanent home in it (Dicey, pages 122 to 126).

(ii) No person can be without a domicile (Dicey, page 126).

(iii) No person can at the same time for the same purpose have more than one domicile (Dicey, pages 126 to 128).

(iv) An existing domicile is presumed to continue until it is proved that a new domicile has been acquired (Dicey, pages 128 to 129).

(v) Every person receives at birth a domicile of origin (Dicey, pages 130 to 133).

(vi) Every independent person can acquire a domicile of choice by the combination of residence and an intention of permanent or indefinite residence, but not otherwise (Dicey, pages 133 to 138).

(vii) Any circumstance that is evidence of a person’s residence, or of his intention to reside permanently or indefinitely in a country, must be considered in determining whether he has acquired a domicile of choice (Dicey, pages 138 to143).

(viii) In determining whether a person intends to reside permanently or indefinitely, the court may have regard to the motive for which residence was taken up, the fact that residence was not freely chosen, and the fact that residence was precarious (Dicey, pages 144 to 151).

(ix) A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently, or indefinitely, and not otherwise (Dicey, pages 151 to 153).

(x) When a domicile of choice is abandoned, a new domicile of choice may be acquired, but, if it is not acquired, the domicile of origin revives (Dicey, pages 151 to 153).”’

Lord Justice McFarlane further referred to the leading case of Udny v Udny (1869) 1 LR Sc & Div 441 where ‘the issue was as to the domicile of the respondent’s father at the time of his (the respondents) birth’. The court held that the respondent’s domicile of origin was intrinsically linked to his father’s domicile. Thus while the respondent was born and lived outside of the UK, the respondent’s father’s domicile was Scotland and therefore the respondent’s domicile of origin was adjudged to be Scotland also.

So where does this leave adoptive parents, children who have been adopted and children who were abandoned, not adopted but are later involved in marital litigation?

The Adoption and Children Act 2002 states, at s.67 (1), that an adopted person is to be treated in law as if the person is the legitimate child of the adopter. Furthermore, Bromley’s Family Law (Oxford University Press) [6th Ed.][vii] states that by virtue of s.67 of the Adoption and Children Act 2002 an adopted child’s original domicile of origin is replaced by a new replacement domicile of origin upon adoption. The adopted child’s domicile of origin is generally accepted as being determined at the time of the child’s birth; however the child’s new domicile of origin will change to that of the adopting fathers. If there is no adoptive father then that of the adoptive mother. This therefore resolves the question of where adopted children stand in regard to their domicile of origin. However, it does not answer the questions in relation to children of unknown fathers and abandoned children.

Colliers Conflict of Laws by Pippa Rogerson and John Collier[viii], states that ‘an illegitimate child and… a posthumous child, that is a legitimate child born after the father’s death, both take the child’s mother’s domicile’ therefore the child of an unknown father will take their domicile of origin from their mother. Moreover, it states that ‘a foundling or (a child) whose parent’s domicile is unknown is domiciled in the place where he or she is found or born’.

Something of further interest is that the British Nationality Act 1981 states, at s.1(2)[ix] that ‘a new-born infant who, after commencement, is found abandoned in the United Kingdom, or on or after the appointed day is found abandoned in a qualifying territory, shall, unless the contrary is shown, be deemed for the purposes of subsection (1)—

(a)to have been born in the United Kingdom after commencement or in that territory on or after the appointed day; and

(b)to have been born to a parent who at the time of the birth was a British citizen or settled in the United Kingdom or that territory.’

Therefore, an abandoned child, found within Britain or the British territories will be classed as a British citizen.

There are a number of conclusions that can therefore be made from this information.

  • Firstly, adoptive parents are legally judged to be the adoptive child’s legitimate parents and their child will take the domicile of origin from the adoptive father or the adoptive mother should there be no father.
  • Secondly, for adopted children, who are now adults and sadly facing litigation, their domicile of origin will be that of their adoptive parents and thus dependent on habitual residence they may have the ability to establish jurisdiction within the UK, or the country in which their domicile of origin vests.
  • Finally, for abandoned children, who are now adults and sadly facing litigation, their domicile of origin will be adjudged to be that of the country in which they were born or found and thus, once again, dependent on habitual residence they may have the ability to establish jurisdiction within the UK, or the country in which their domicile of origin vests.


[i] BAAF: Adoption and Fostering Statistics: http://www.baaf.org.uk/res/statengland

[ii] Call for ‘baby boxes’ for abandoned new-borns, BBC News: http://www.bbc.co.uk/news/uk-scotland-22123366

[iii] The Adoption and Children Act 2002: http://www.legislation.gov.uk/ukpga/2002/38/contents

[iv] Domicile and Matrimonial Proceedings Act 1973: http://www.legislation.gov.uk/ukpga/1973/45/part/II?view=plain

[v]  Ray v Sekhri [2014] EWCA Civ 119: http://www.bailii.org/ew/cases/EWCA/Civ/2014/119.html

[vi] Barlow Clowes International Limited v Henwood [2008] EWCA Civ 77: http://www.bailii.org/ew/cases/EWCA/Civ/2008/577.html

[vii] Bromley’s Family Law [6th Ed.], Lowe, N V, Gillian Douglas and N V. Lowe, Oxford: Oxford University Press.

[viii] Collier’s Conflict of Laws [4th Ed.], Pippa Rogerson, John Collier, Cambridge University Press.

[ix] The British Nationality Act 1981: http://www.legislation.gov.uk/ukpga/1981/61

Photo by Free Grunge Textures via Flickr under a Creative Commons license.

International Women’s Day and the introduction of Clare’s Law.

International Women's Day

On Saturday the 8th of March 2014 it was International Women’s Day. The first International Women’s Day was held in 1911, however it wasn’t recognised by the United Nations until in 1975. As of 1996 the United Nations have declared annual themes which have ranged from ‘Celebrating the past, Planning for the Future’[i] and ‘Afghan Women Today: Realities and Opportunities’ (International Women’s Day), to ‘Empower Rural Women – End Hunger and Poverty’ (International Women’s Day) and ‘A promise is a promise: Time for action to end violence against women’ (International Women’s Day). This year’s annual theme was ‘Inspiring Change’, which aims to encourage women’s advancement across the globe. ‘It calls for challenging the status quo for women’s equality and vigilance inspiring positive change’ (International Women’s Day).

Coinciding with the celebration of International Women’s Day, Clare’s Law was rolled out across England and Wales. Some of you may remember my blog post on Clare’s Law on the 26th of November last year, which contained information as to the intended effect of Clare’s Law and the case upon which it was based, that of Clare Wood. For those of you who didn’t have a chance to read the post, Clare Wood was a thirty six year old woman who was brutally murdered by her ex-boyfriend just 72 hours after he was released from police custody. Clare was unaware of her ex-boyfriend’s history of domestic abuse against women, which her father argues was a major contributing factor to her death. Clare’s father argued that had Clare known of her ex-partner’s history for violence she may not have begun dating him, let alone stayed with him. Clare’s father began a campaign for a law whereby individuals could access information regarding their partner’s history for domestic abuse or acts of violence.

The Domestic Violence Disclosure Scheme, which is designed to allow disclosure of an individual’s history of violence, has now been rolled out across England and Wales. This follows a fourteen month pilot scheme. Further to this Domestic Violence Protection Orders (DVPOs) have also been introduced which allow the police and the magistrates court to offer ‘protection for the victim in the immediate aftermath of a domestic violence incident. Under DVPOs, the perpetrator can be prevented from returning to a residence and from having contact with the victim for up to 28 days, allowing the victim a level of breathing space to consider their options, with the help of a support agency. This provides the victim with immediate protection. If appropriate, the process can be run in tandem with criminal proceedings.’[ii]

Clare Wood’s father, Michael Brown, stated that he was delighted with the news but he ‘must admit it’s tinged with a bit of emotion and a bit of sadness but we have got what we were fighting for – to bring protection into the country for half the population’[iii] . ‘On average two women a week are killed by a current or former male partner’[iv], furthermore ‘one incident of domestic violence is reported to the police every minute’ (Women’s Aid). In addition, ‘one in six men’ (Women’s Aid) are victims of domestic violence. These statistics are skewed by the fact that numerous acts of domestic violence go unreported and that emotional abuse is often not regarded as a crime and is, therefore, not included.

Home Secretary Theresa May, a supporter of the scheme, stated that she is ‘determined to see a society where violence against women and girls is not tolerated, where people speak out, and where no woman or girl has to suffer domestic abuse’[v]. However, there are a few people who are not sure what the law will actually achieve and whether Theresa May’s aims will be realised. Jane Keeper from Refuge, a domestic violence charity, states that ‘most perpetrators of domestic violence are never known to police, social care or the other agencies – so usually if a woman asks the police the likeliest thing, even if he is a perpetrator, is they are not going to know anything. The real problem is women we are working with right this minute, every day, experience really shocking failures on the part of the police and other state agencies’ (BBC News).

Whether or not the scheme will have the required effect of drastically reducing domestic violence against both women and men is yet to be seen. However, for it to have any effect it has to be used and the information that is given needs acting upon. Mr Brown, told BBC News ‘it’s there to be used. Get it used, ask! If you are in a domestic violence situation or you think you could be seek advice and get out of there, because the ultimate is 120 women a year have lost their lives, mostly at a young age’ (BBC News).



[i] International Women’s Day, ‘International Women’s Day 2014 Theme: INSPIRING CHANGE’, http://www.internationalwomensday.com/theme.asp#.Ux2Ju4WHhwg

[ii] Gov.UK, ‘Domestic Violence Protection Orders and Domestic Violence Disclosure Scheme’, https://www.gov.uk/government/speeches/domestic-violence-protection-orders-and-domestic-violence-disclosure-scheme

[iii] BBC News, “Clare’s Law’ introduced to tackle domestic violence’, http://www.bbc.co.uk/news/uk-politics-26488011

[iv] Women’s aid, Topic: Statistics, http://www.womensaid.org.uk/domestic_violence_topic.asp?section=0001000100220036

[v] The Guardian, Clare’s Law letting women know if partner has abusive past rolled out, http://www.theguardian.com/society/2014/mar/08/clares-law-partners-abusive-past

The Adoption System is in for an overhaul.

8512749863_b83f012083_mHow is it March already? The year appears to be flying by, it feels like only yesterday that I was signing off for the Christmas holidays and yet it is now nearly Easter. Before you know it spring will be over, summer will be in full swing and we might even get a bit of sun. Anyway, enough about the seasons, I doubt you tuned in to this blog to be read about the time of year or the weather. If you did may I redirect you to the Met Office’s home page they seem to be somewhat aware of the current weather in the UK. If you, however, stumbled across the blog in search of current legal affairs and family law updates you’re in the right place.

Today I thought I would take a look at the new draft guidance published by the Department of Education aimed at helping social workers and other professionals working within public child care understand and navigate their way through the new adoption system. A link to the open consultation paper, ‘Improving the adoption system and service for looked-after children’ can be found at the end of this article. The consultation is open until the 11th of April 2014. The proposed changes to the adoption system and statuary guidance result from part 1 of the Children and Families Bill, a link to which can also be found at the end of this article. The Bill is still making its way through the governmental process, stages of which, in summary, include:

1. House of Commons:

  • First reading
  • Second Reading
  • Committee Stage
  • Report Stage
  • Third Reading

2. House of Lords:

  • First reading
  • Second Reading
  • Committee Stage
  • Report Stage
  • Third Reading.

3. consideration of amendments.
4. Royal Assent

The draft guidance, ‘Improving the adoption system and services for looked-after children’ was published on the 28th of February 2014 and runs alongside a number draft regulation changes. The premise for the legislative changes and guidance being that the government wishes to see more children adopted without the average two year delay between entering care and moving in with an adoptive family. The changes within the area promote schemes such as fostering with the intention of adopting and are intended to improve the support offered to adoptive families.

Further to this the changes include removing the risk that ethnicity is prioritised over other factors within adoptive consideration; ensuring that information regarding entitlement to adoptive support and other governmental schemes is given to prospective adopters; the removal of restrictions which previously prevented prospective adopters from playing crucial and active roles within the adoptive process. These reforms follow those implemented last year which include a two stage process improving the speed of approval of prospective adoptive parents to, on average, six months after application; a legal duty on adoption agencies to refer adopters to the adoption register within three months of approval; and a duty to ensure all information on children awaiting adoption is constantly updated and children are referred to the register within three months of the decision to allow adoption being made. Furthermore every local authority will now be required to have a Virtual School Head, whose role is to improve and encourage the education of children under the local authorities care.

Children and Families Minister Edward Timpson stated that the ‘reforms to the adoption register, greater use of fostering for adoption and the removal of often unnecessary delay, will mean would-be adopters can play a much greater role in the process and will ensure children who need them are given stable, loving homes with their new families much more quickly. The revised adoption guidance will also make it much easier for social workers to follow the new processes when considering adoption for vulnerable children. It means they can make the best possible decisions in the interests of the 6,000 children waiting for a loving home.’

Links:

Improving the Adoption System and Services for Looked-after Children, Government Consultation, https://www.gov.uk/government/consultations/adoption-getting-it-right-making-it-work

Children and Families Bill: http://services.parliament.uk/bills/2012-13/childrenandfamilies.html

Timpson Unveils Further Reforms to Speed up Adoption, Children and Young People Now, http://www.cypnow.co.uk/cyp/news/1142445/timpson-unveils-reforms-speed-adoption

Staying put amendment has been added to the Children and Families Bill.

247304984_0a387066d8_mSome of you may recall a blog post I wrote on the 9th of October 2013, entitled ‘Leaving Care and the Children and Families Bill’, in which I wrote about the proposed amendment to allow children who live with foster carers to stay within foster care until the age of 21 years, if both parties agree.  Well, on the 9th of February 2014 this amendment was formally added to the bill, which is now at the Report Stage in the House of Lords. Following this the bill only has to pass through the Third Reading and the consideration of amendments stage, before receiving Royal Assent. The progression of the bill can be viewed here: http://services.parliament.uk/bills/2012-13/childrenandfamilies.html.

The Fostering Network, the UK’s leading charity for foster care, who have represented the voice of foster care, and have been influencing policy and campaigning for improvements for nearly 40 years have been running a campaign in this regard: Don’t Move Me. This amendment represents a success on their behalf, with the charities role being praised by Lord Listowel during the debate in the Lords Chamber (http://www.publications.parliament.uk/pa/ld201314/ldhansrd/text/140205-0002.htm#14020581000634).

Every year hundreds of children in foster care are forced to leave their homes at the age of 17, despite the fact that children who are not in foster care on average do not leave home until the age of 25.

Lord Nash argued that the Government is committed to ensuring local authorities implement the change, stating that, ‘We are continuing to work with sector organisations on the guidance to ensure that it supports the effective implementation of this important new duty. We are committed to doing more to support care leavers, and I believe that the proposed new clause is a crucial step forward.’

The Fostering Network stated ‘that at present, some young people are supported to stay with their foster family beyond 17 by their local authority, while others are reliant on their foster carers being willing and able to keep them out of their own pocket. Many young people find themselves having to leave their foster home and live independently by their 18th birthdays. This change to the law will place a duty on English local authorities to facilitate and support staying put arrangements for all fostered young people, where this is what they and their foster carers want. Crucially, the importance of financial support for foster carers has been directly addressed by the Government: they have pledged an extra £40 million for local authorities over three years to ensure that foster carers will not be out of pocket as a result of offering staying put placements.’

The fact that children will now, with the passing of this bill, be able and supported to stay within foster care until the age of 21 years is a brilliant step in the right direction. As the amount of adult children living with their parents in the UK rises, it seems only right to ensure that foster children also have this option.

Photo by kamshots via Flickr under a Creative Commons license

Children will lose out if the new Child Maintenance Service charges are passed.

5419905792_c5743b0637_mThere are currently an estimated two million single parents in Britain today with 26% of dependent children households being single parent households, according to Gingerbread, an organisation that provides advice and practical support to single parents. Many of these single parent households rely on child maintenance paid by the child’s non-resident parent to survive. With approximately 124,000 applications on a yearly basis, the CSA was a system that allowed parents who could not come to their own arrangement regarding child maintenance to do so via the government agency. The CSA both calculate the amount of child maintenance due and collected, enforced and arranged transfer of the child maintenance. In a previous blog, entitled ‘Changes in Child Maintenance Calculations and how they affect you’, I wrote of the new child maintenance system replacing the CSA: the new scheme being the Child Maintenance Services or CMS. As the new scheme rolls out across the UK a new plan is emerging, this being the plan to start charging parents who need to use the CMS.

This new plan have been passed to parliament in the form of the Child Support Fees Regulations 2014. The plan includes the introduction of a £20 application fee to access the CMS and gain a child maintenance calculation. Furthermore should the non-resident parent fail to pay maintenance the resident parent will lose 4% of their child maintenance as part of the collection of maintenance fee, in addition the parent who fails to pay will be charged an additional 20% of the child maintenance as part of the collection fee. On this calculation, should the paying parent be order to pay £30 a week in child maintenance the receiving parent will lose £1.20 a week, totalling £62.40 a year and the paying parent would be paying an additional £6 a week, totalling £312 a year. Many single parents currently use the service to ensure that the money is drawn weekly from the paying parent and deposited to the receiving parent, without issue. The child in this situation is therefore losing out on at least £62.40 a year and if one were to look at this cynically it could be argued that the child is in fact losing out on £374.40 a year, which for most single parents is a significant amount.

Former Lord Chancellor Lord MacKay warned that the above plans were ‘unjustified in principle’. He is not the only one opposing the implementation of the charges. Lord Kirkwood warned that ‘condemning people to pay fees is contrary to natural justice, bad policy, and worst of all, inimical to the interests of the long-term future of many of our impoverished children.’ The Telegraph produced an article entitled, ‘Parents fight changes – and 20pc charges – in child maintenance reforms’, in which Janet Allbeson, a senior policy consultant at Gingerbread, said: “If you take away 4pc of income from a parent who is bringing up children, that is 4pc you are taking away from a child.” And Jerry Karlin, chairman of Families Need Fathers, added: “The proposals seem more likely to exacerbate problems for separated families than to help them work together. Parents who have trouble meeting a payment through circumstances beyond their control risk becoming caught up in a vicious cycle of accumulated debts and arrears.” Furthermore, when the plans were originally before the Lords in January 2012 peers from all parties expressed extreme alarm at the prospect of charging single parents to access the CMS.

There is however the argument from the government that implementing the charges may encourage separated parents to come to an amicable arrangement in regard to child maintenance. Some, however, may argue that this is somewhat naïve thinking on behalf of the government in that there are cases when it is virtually impossible for the receiving parent to agree with the paying parent and set up regular and consistent payment.  There is also the argument of punishment with regard to the paying parent, in that should they not pay they should be punished for not doing so hence the 20% additional charge, if this is to be accepted then why charge the receiving parent 4% in addition?

The government plans to close all existing CSA arrangements and ask the parents involved to come to an arrangement between themselves. If they are unable to do so the receiving parent will need to pay the £20 application fee to apply for a new maintenance order under the CMS scheme. Chief Executive of Gingerbread Fiona Weir stated that ‘It is deeply disappointing that the concerns of distinguished peers from all parties, and of course of single parents themselves, have been swept aside by government. Hundreds of thousands of parents will now face case closure and charges over the next few years. We are very concerned about the impact on children, for whom child maintenance is vital. The charges will bring added financial burdens to many single parent families who are already struggling, and pressure others into unstable private arrangements.’

So whether the Child Support Fees Regulation 2014 is made in to a UK statutory instrument or not remains to be seen, but it would appear to be an extremely controversial matter. It will surely face extensive debate and we all await its conclusion.

For further information on the articles and draft legislation quote above, please see the below links:

The Child Support Fees Regulation 2014: http://www.legislation.gov.uk/ukdsi/2014/9780111106365/contents

Gingerbread organisation homepage:

http://www.gingerbread.org.uk/

Parents fight changes – and 20pc charges – in child maintenance reforms, The Telegraph:

http://www.telegraph.co.uk/finance/personalfinance/10463253/Parents-fight-changes-and-20pc-charges-in-child-maintenance-reforms.html

Changes in Child Maintenance Calculations and how they affect you, Stowe Family Law Trainee Blog, by Zoe White:

http://www.stowefamilylawllp.com/2014/01/20/changes-in-child-maintenance-calculations-and-how-they-affect-you/

Photo by aarongilson via Flickr under a Creative Commons license

Putting child welfare first – amends made to ‘shared parenting’ clause. By guest blogger Hayley Crossman.

144370986_e36c264f94_m

Today has seen an amendment to clause 11 for the Children and Families Bill approved by the House of Lords and this has been reported by Family Law Week: http://www.familylawweek.co.uk/site.aspx?i=ed127361

The controversial clause 11 stated that courts should “presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare” which had lead to some discourse amongst charities and professionals and many parents.  The main concern was that this presumption could undermine the requirement for the welfare of the child to be the court’s paramount consideration as contained in Section 1 of the Children Act 1989 and that parents who are looking to parent separately, outside of a relationship, may assume that they have a legal ‘entitlement’ to equally share residence or parenting of the children involved.The Shared parenting consortium which includes a number of well known children’s charities such as NSPCC and the lead charity Coram Children’s Legal Centre (CCLC) has been campaigning for the term ‘involvement’ to be clarified as meaning direct and indirect contact with no stipulated division of time between the parents.

The Bill will now move from the Third reading in the House of Lords back to the House of Commons in order for this amendment to be considered.

It has been interesting to follow this Bill from start to finish.  I was lucky enough to work on the Bill at the Department for Education and was able to hear firsthand the debates surrounding this clause. More information on this Bill and its progression through to Royal Assent can be followed on the Parliament website at http://services.parliament.uk/bills/2012-13/childrenandfamilies.html

Photo by Scott Ableman via Flickr under a Creative Commons license

Split hearings, ‘non-accidental injury’ and Public Child Law Proceedings

5922817362_33078924c9_mOver the years and throughout the legal profession many judges and legal professionals have grappled with varying issues within the legal system, from societal advances affecting the way we look at the law to definitions of specific words affecting the way we police our society. Arguments, controversy and debate dog every legal system and rightly so, without such, advances would not be made and we would be stuck with draconian ideas of how society should behave.

Recently Ryder LJ gave some interesting guidance regarding split hearings and ‘non-accidental injury’ in public child law proceedings. He did so in the case of Re S (A Child) [2014] EWCA Civ 25. For those of you who are unsure as to what a split hearing actually is, it is a hearing that is divided in to two parts; I suppose that is kind of obvious. The first part is where the court makes findings of fact on the various issues identified within the case. The second part is where the court, based on its findings of fact, decides the case.

So why split a hearing? According to an article written by Rhiannon Davies and Charmain Gammon, both of whom are Barristers, in 2011, fact finding hearings can ‘narrow and determine issues within both public and private law proceedings so as to avoid delay, inform expert assessment and assist effective case management’ but can also have a negative effect in that they can ‘build in significant delay, unnecessarily “raise the temperature” of private law proceedings and incur disproportionate expense’. According to the President’s Guidance in Relation to Split Hearings, published in May 2010, ‘Judges and magistrates should always remember that the decision to direct a split hearing or to conduct a fact finding hearing is a judicial decision… Thus the court should not direct a fact finding hearing simply because the parties agree that one is necessary or because Cafcass says that it cannot report without one. Such considerations are, of course, to be taken into account, but they are not conclusive. In any event, the focus of any report is a matter for the court.’ Further the guidance states that ‘a fact finding hearing should only be ordered if the court takes the view that the case cannot properly be decided without such a hearing. Even when the court comes to the conclusion that a fact finding hearing is necessary, it by no means follows that such a hearing needs to be separate from the substantive hearing. In nearly every case, the court’s findings of fact inform its conclusions.’ In addition to the above the guidance draws the reader’s attention to the practice direction within this area which states that the courts must give directions, when a fact finding hearing is deemed necessary, to ensure ‘the matters in issue are determined expeditiously and fairly’.

As far back as 1996, judges were tackling the issue of when a split hearing should be used. Bracewell J stated that it would be of positive influence if the courts were to consider whether or not there were questions of fact in need of determination within a case at an early stage. This, according to Bracewell J, would allow ‘the substantive hearing to proceed more speedily’ and allow the court to ‘focus on the child’s welfare with greater clarity’. Bracewell J concluded that cases that would be suitable for split hearing were ‘cases in which there is a clear and stark issue, such as sexual abuse or physical abuse’ with the aim ‘to prevent delay and the ill-focused use of scarce expert resources’.

Since 1996 numerous cases have questioned when a split hearing should be used, bringing us to the latest case of Re S (A Child) [2014] EWCA Civ 25. This case resulted from a young girl being admitted to hospital with a skull fracture. The local authority stated that the injury was non-accidental, deliberately inflicted and had occurred whilst the girl was in the care of her parents. This case then gave rise to two issues, the first being that discussed above: when should a split hearing be used and the second being the question of the meaning of non-accidental injury.

In dealing with the first matter, Ryder LJ stated that split hearing should be use only where there is ‘a stark or discrete issue to be determined and an early conclusion to that issue will enable the substantive determination… to be made more expeditiously’. Further he stated that split hearings ‘should be used where the threshold criteria would not be satisfied if a finding could not be made in the most simple of cases, thereby concluding the proceedings, or in the most complex medical causation cases where death or very serious medical issues have arisen and an accurate medical diagnosis is integral to the future care of the child. It is inappropriate to argue a split hearing is required to enable a social care assessment to be undertaken. In so far as it is necessary to express a risk formulation as a precursor to an analysis or a recommendation to the court, that can be done by basing the same on each of the alternative factual scenarios that the court is being asked to consider. A decision about a split hearing is a case management decision and accordingly Part 1 of the FPR 2010 and Pilot PD 12A apply. A split hearing is only justifiable where the delay is in furtherance of the overriding objective. Any such decision should be considered at the case management hearing and reasons should be recorded on the face of the order along with the issue to be tried.’

In dealing with the second matter, the definition of non-accidental injury, Ryder LJ stated ‘the term ‘non-accidental injury’ may be a term of art used by clinicians as a shorthand and I make no criticism of its use but it is a ‘catch-all’ for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from say negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).’ Further, Ryder J stated that ‘just as non-accidental injury is a tautology, ‘accidental injury’ is an oxymoron that is unhelpful as a description.  If the term was used during the discussion after the judgment had been given as a description of one of the possibilities of how the harm had been caused, then it should not have been; it being a contradiction in terms.  If, as is often the case when a clinical expert describes harm as being a ‘non-accidental injury’, there is a range of factual possibilities, those possibilities should be explored with the expert and the witnesses so that the court can understand which, if any, described mechanism is compatible with the presentation of harm.’

So where does that leave us? The two areas still appear somewhat unresolved, even if we have a clearer idea of what is expected. Both areas still need further discussion and debate and it may be, like so many areas of law, that this debate will be ongoing for years to come. In a legal system reliant on words it is impossible to be so specific and clear as to completely avoid doubt or confusion. Every word we use has a thousand synonyms all of which have their own synonyms and thus we may be locked in an ongoing battle to have a system so clearly defined that there is no doubt as to exactly what is meant and trying to achieve this with words that are never going to result in the absence of doubt.

Useful links:

Re S (A Child) [2014] EWCA Civ 25:

http://www.familylawweek.co.uk/site.aspx?i=ed127225

When is a Fact Finding Hearing Necessary?, Rhiannon Davies and Charmian Gammon: http://www.familylawweek.co.uk/site.aspx?i=ed80309

The President’s Guidance in Relation to Split Hearings: http://www.familylaw.co.uk/system/uploads/attachments/0000/6106/Practice_Guidance_Split_Hearings_May_2010.pdf

 

Marriage Counselling could actually save you money. By guest blogger Becca Shenkin.

3563154055_6eef3fd771_mAs I was sitting at my desk having some lunch I read an article about how beneficial marriage counselling and preparation courses are. And why are they so beneficial? Well apart from helping couples through their marriages, and helping prepare couples to be wed, it was discovered that for every pound couples spend on counselling, taxpayers could save up to £11.50.

The Department of Education commissioned this independent evaluation as part of the government’s ongoing policy to support marriage.  Relationship breakdown is estimated to cost the UK economy £46 billion each year. Therefore, the uptake of these services such as those offered by Relate’s couple’s counselling and Marriage Care’s marriage preparation is essentially helping the economy, as well as individual couples.

Mark Molden, the Chief Executive of Marriage Care stated that “We know that relationship support works and we would encourage people of all ages to find out more about how the services evaluated in this report could help them at different stages of their relationship.”

This got me thinking about my dissertation, where I suggested that more emphasise should be placed on marriage and relationship education.  Marriage and Relationship Education (MRE) is currently being used in Australia and the United States of America as part of family policy.  MRE is arguably less stigmatising, less risky, less intrusive and less expensive. These arguments in favour of MRE suggest that couples are more likely to benefit from MRE programmes. MRE programmes should arguably be incorporated into public and private sectors. Such integration would allow current organisations to undertake marriage strengthening and in essence allow MRE to become a natural supplement to an organisation’s principal work. Therefore, there is the argument that MRE programmes could be implemented in community settings, religious organisations, universities and school.

MRE has two general concepts: to develop communication and problem solving skills that are central to a healthy and stable relationship and to provide didactic presentation of information that correlates with marital quality.  The aim of MRE is to enhance marital stability as well as educating individuals how to approach problems and conflicts that arise in marriage.  MRE could effectively support dynamic risk factors such as realistic relationship expectations and effective couple communication. These types of programmes should be introduced at effective stages in an individual’s life and relationship. Clearly , after the decision to divorce would be illogical. MRE should be offered in high schools, premarital, and during transition periods including parenthood, relocation, major illness and unemployment.

Another suggestion is that MRE could be provided over the internet. I have recently read a book by Richard Susskind called “Tomorrow’s Lawyers” which identifies that the legal world must change due to technological advances. Therefore, in line with Susskind’s argument about the future of legal services, the types of programmes mentioned in this blog could be performed over the internet, especially for lower risk couples where face-to-face education and counselling is not necessary.

MRE programmes are in accordance with Relate’s marriage counselling service and Marriage Care’s marriage preparation course and this then begs the question if the government should spend time investing in MRE programmes in order to help couples, and as we saw at the beginning of this blog, essentially help the economy.

As Mark Molden also said when talking about these services: “ it is not just about getting support when there’s a crisis; it’s about building and maintaining  strong relationships which see people through everything that happens during our increasingly busy and fast-paced lives.”

There is the problem that these services need better advertising strategies behind them and better signposting so that more couples are aware of them. The article also states that once couples’ already used the services they were more likely to be able to access relationship support in the future.

Therefore, it seems that relationship counselling and educational preparation courses should be encouraged in the UK and this could then help both couples and, well the economy.

Reaching an agreement: an example of overcoming entrenched disputes. By guest blogger Hayley Crossman

6026050882_4681975221_mYesterday was my MA dissertation recall day at Keele University where I am studying for an MA in Child Care Law and Practice.  It was good to be back with my university colleagues as we are all going through this ‘ordeal’ together and we all seem to be in a mild state of panic.

Sitting around the table we all seemed to be worrying about the same kind of things – How do I start this dissertation? What if I have changed my title? I have no idea where to start! When does this have to be in again?!

It was good to see that I was not the only one who had decided to change the title of my essay but I put this change down to working in an environment where every day brings something new to consider.  For the past few weeks I have been deliberating between various topics but have decided to carry on writing about the issue of contact (although listening to the other suggested topics being mentioned by my colleagues such as, adoption and the 26 week limit, the role of men in the family and domestic violence and child protection did have me verging on the point of changing titles completely).

Attending clients in meetings does open your eyes to the all encompassing reach of ‘family law’ and makes you realise the broad spectrum of issues which family lawyers deal with.  There is the financial side of divorce, the family side of divorce and the putting plans in place prior to marriage – no day will be the same and every client has a different story to tell; our job is to do the best for them in their circumstances.

Going back to my dissertation, I have started to look at some of the data around contact and found that this month Cafcass released their figures for private proceedings and care proceedings demand:

http://www.cafcass.gov.uk/news/2014/january/december-2013-private-law-demand-statistics.aspx

http://www.cafcass.gov.uk/news/2014/january/december-2013-care-demand-statistics.aspx

Unfortunately, there is no absolute breakdown of what the private law demand applications were.  I would be interested to know how many applications were for contact alone and how many of these were from non resident parents and how many were from other family members.  The figures appear to show that in 2013, applications for care proceedings fell whist applications for private law increased although applications in both arenas in December appeared to fall.  The figures do seem to fluctuate though and therefore it cannot be said for certain whether applications are really declining in public law but increasing in private law.

I had thought, following the family justice review and the government response to this,  that removing legal aid from private law proceedings would lead to a decline in the number of couples pursuing cases through the family courts.  The government had hoped that more couples would seek to come to an arrangement through mediation and the use of parenting agreements.  However, there will always be couples who are entrenched in bitter arguments and therefore feel they need to rely on family courts to make an order for contact, residence or prohibited steps orders (amongst other applications). Unfortunately, it is too soon to look at whether withdrawing legal aid is having an effect on the number of cases going through the family courts but the figures which emerge in the future should give us a better indication of this.  I am hoping that more robust data will also be available on the type of applications received by the courts.

I was intrigued to see if parenting agreements or (shared parenting plans) had ever been mentioned in case law – and they had.

Re: Z (Shared Parenting Plan: Publicity) [2006] 1 FLR 405 publicised a case which involved a couple who had been entrenched in bitter arguments for three years.  The father had abducted the child and had served time in prison for this.  Eventually, the parents had been able to reach an agreement as to the sharing the parental involvement with the daughter.  The opinion of the whole court was that the

“shared parenting plan agreed by the parents in this case was to be commended and such an approach could be considered as a basis for discussion and negotiation in future cases.”

Although this case is now nine years old, it could well be reported in future cases to show that not all matters concerning the residence of children need to go through the family courts and that an agreement can be reached even following long periods of family disputes.

I think this may be another area of law to watch in the future.

Photo by zeeweez via Flickr under a Creative Commons license

A quick guide to surrogacy law as it currently stands within England.

8027725497_4050f2e157_mIn furtherance of my blog both yesterday, entitled From Yorkshire to Los Angeles and back again in one blog post and on the 22nd of January, entitled ‘A seven month old baby boy and Surrogacy: Finances and the inconsistencies between policy and law’. I decided to complete a little more in depth research in regard to the current Surrogacy laws in England, which appear to be somewhat of a hot topic at the moment.

The UK Government webpage gives a quick guide as to the rights for surrogate mothers and includes the following information. ‘Surrogates are the legal mother of any child they carry, unless they sign a parental order after they give birth transferring their rights to the intended parents.’ ‘The woman who gives birth is always treated as the legal mother and has the right to keep the child – even if they’re not genetically related. Surrogacy contracts aren’t enforced by UK law, even if a contact has been signed with the intended parents and they’ve paid for any expenses.’ This is obviously extremely controversial with surrogate mothers having the ability to keep the babies they give birth to regardless of the fact that the child may be the genetic child of the intended mother. This results in issues like the one reported by the Daily Mail in their article entitled ‘Surrogate mother says ‘Sorry, but I am keeping your babies.’’. So what about the father’s rights? The government states that ‘the child’s legal father or ‘second parent’ is the surrogate’s husband of civil partner unless legal rights are given to someone else through a parental order or adoption or the surrogate’s husband or civil partner did not give their permission to their wife or partner.’ Thus it would appear that the intended father, who could also be the genetic father of the child, is left in the same position as that of the intended mother. Further the government states that ‘if a surrogate mother has no partner, or they’re unmarried and not in a civil partnership, the child will have no legal father or second parent unless the partner actively gives consent’.

It is illegal in the UK to pay a surrogate beyond the reasonable expenses incurred by the surrogate mother in relation to her pregnancy. The Surrogate also has a right to 52 weeks’ maternity leave and to return to their job after this.

Surrogacy law within the UK has not changed much since the implementation of the Surrogacy Act 1985. Thus Surrogacy law could be considered somewhat outdated and fragmented. Bianca Jackson in her article entitled Surrogacy: A Guide to the Current Law (Part 1) states that surrogacy law is full of contradictions such as the fact that ‘commercial surrogacy is prohibited, but the courts can authorize payments to the surrogate mother; third party non-profit surrogacy organizations can receive remuneration for some services, but not for others. There is no comprehensive legal approach to surrogacy or even consensus about what such an approach would look like. As such, surrogacy law remains a source of confusion to both practitioners and those who engage in surrogacy practices.’

Bianca goes on to explain that, according to the Surrogacy Act, ‘Surrogacy arrangements are not illegal if they are altruistic (i.e. the surrogate mother does not receive payment for carrying the commissioned child). Commercial arrangements for surrogacy are prohibited [s.2(1)]. However, the commissioning parents and/or the surrogate mother are not guilty of an offence if payment beyond reasonable expenses is made [s.2(2)]- though if payment is made, this may have ramifications for the outcome of the application for a parental order. Regardless of whether payment is made to the surrogate mother or not, all surrogacy arrangements are unenforceable [s.1A – inserted by Human Fertilisation and Embryology Act 1990]. It is a criminal offence for a person to advertise that they are looking for a surrogate mother or are willing to act as a surrogate mother [s.3(1)(a)] and the penalty for doing so is a fine and/or up to three months imprisonment [s.4(1)].’ Further in relation to professional bodies, ‘It is a criminal offence for any third party (whether an individual or a professional body) to broker surrogacy agreements between a surrogate mother and commissioning parents for commercial purposes, i.e. for payment [s.2]. It is also a criminal offence for third parties to advertise their willingness to broker a surrogacy arrangement [s.3(1)(a)], as well as for newspapers or periodicals to carry said advertisements [s.3(2)]. The penalty for any of the above offences is a fine and/or up to three months imprisonment [s.4(1)].’

The Human Fertilisation and Embryology Act 1990 and 2008 both further add to the Surrogacy Act. The Human Fertilisation and Embryology Acts above regulate what can and cannot be done with embryo’s and gametes. Bianca goes on to explain the intricacies of the above Act in relation to the legal definitions of parentage and the transfer of parental responsibility and legal parenthood, which make for interesting reading.

Of further relevance in the area is the Human Fertilisation and Embryology (Parental Orders) Regulation 2010 which inserted s.1 of the Adoption and Children Act 2002 into s.54 of the HFEA 2008. Part 13 of the Family Procedure Rules 2010 also offers integral guidance on s.54 of the HFEA 2008. Links to all of the above acts, regulations and articles can be found below.

Obviously the above is a simplified summary of current surrogacy laws and anyone wishing to take part in the surrogacy process should visit the Human Fertilisation & Embryology Authority’s website which is listed below and contact a lawyer with specialist knowledge of surrogacy law.

Further information on surrogacy and support throughout the surrogacy process can be found via the links below:

Surrogacy Act 1985: http://www.legislation.gov.uk/ukpga/1985/49

The Human Fertilisation and Embryology Act 1990: http://www.legislation.gov.uk/ukpga/1990/37/contents

The Human Fertilisation and Embryology Act 2008: http://www.legislation.gov.uk/ukpga/2008/22/contents

Human Fertilisation and Embryology (Parental Orders) Regulation 2010: http://www.legislation.gov.uk/uksi/2010/985/contents/made.

Adoption and Children Act 2002: http://www.legislation.gov.uk/ukpga/2002/38/section/1Surrogacy Act 1985: http://www.legislation.gov.uk/ukpga/1985/49

Part 13 of the Family Procedure Rules 2010: http://www.justice.gov.uk/courts/procedure-rules/family/parts/part_13

‘From Yorkshire to Los Angeles and back again in one blog post’: http://www.stowefamilylawllp.com/2014/01/29/from-yorkshire-to-los-angeles-and-back-again-in-one-blog-post/

‘A seven month old baby boy and Surrogacy: Finances and the inconsistencies between policy and law’: http://www.stowefamilylawllp.com/2014/01/22/a-seven-month-old-baby-boy-and-surrogacy-finances-and-the-inconsistencies-between-policy-and-law/

Bianca Jackson’s article entitled Surrogacy: A Guide to the Current Law (Part 1): http://www.familylawweek.co.uk/site.aspx?i=ed127038

Surrogacy UK, Common Questions Answered: http://www.surrogacyuk.org/intended_parents/your-questions-answered

Human Fertilisation & Embryology Authority: http://www.hfea.gov.uk/fertility-treatment-options-surrogacy.html

Daily Mail article entitled ‘Surrogate mother says ‘Sorry, but I am keeping your babies.’’: http://www.dailymail.co.uk/femail/article-423125/Surrogate-mother-says-Sorry-Im-keeping-babies.html

Photo by _-0-_ via Flickr under a Creative Commons license