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tag:www.familylaw.co.uk,2005:/news_and_comment?format=rss Family Law 2014-11-25T16:56:33+00:00 tag:www.familylaw.co.uk,2005:Article/107831 2014-11-25T08:45:00+00:00 2014-11-25T09:25:34+00:00 Family arbitration for 'DR dummies': An overview <strong>This article was written in support of Resolution's third&nbsp;<a href="http://www.resolution.org.uk/editorial.asp?page_id=956" target="_blank">Family Dispute Resolution Week</a>, running from 24–28 November 2014.<br> <br> This awareness-raising week aims to highlight the alternatives to court for separating couples and their families. Support the campaign on Twitter using <a href="https://twitter.com/search?q=%23abetterway&src=typd">#abetterway</a> <a href="https://twitter.com/search?q=%23resolutionweek&src=typd">#ResolutionWeek</a> and <a href="https://twitter.com/search?q=%23familylaw&src=typd">#familylaw</a> </strong><br> <hr> <h2>Introduction</h2> In 2012 the <a href="http://ifla.org.uk/">Institute of Family Law Arbitrators </a> (IFLA) launched a scheme which provides for the arbitration of financial disputes following relationship breakdown after marriage or cohabitation. Arbitration is essentially private judging. <br> <br> <h2>Why arbitrate?</h2> Why was this step taken? <br> <br> Have you ever had to wait an unacceptably long time for a final hearing and/or a judgment? Have you ever attended court to be told there is not enough time for your case to be heard? Have you and/or your clients ever found the court facilities and conference rooms to be wanting? Given the transparency agenda, have you amended your standard terms to provide a warning as to the possibility of publicity and does this cause any of your clients a concern? Have you ever nearly settled a case, but were left with one intractable issue which necessitated the complete Form E disclosure process to be worked through, just for that one issue to be canvassed by the court? <br> <br> It is not just in the family arena that the court system has been found to be wanting. <a href="http://www.counselmagazine.co.uk/articles/personal-injury-claims">Andrew Richie QC </a> makes a compelling argument for the need for personal injury claims to be resolved by arbitration. The cases of <em>Mitchell v News Group Newspapers Limited</em> [2013 EWCA Civ 1526 through to <st1><st1><em>Denton</em><em> & Others v TH White & Others </em>[2014] EWCA Civ 906 have made the civil litigator’s lot a miserable existence. Serious consequences for family lawyers who do not comply with family orders are on the agenda: see Munby P in <em>Re W (Strict Compliance With Court Orders) </em> [2014] EWHC 22 (Fam). <br> <br> The amended PD27A, in particular the requirement to only have documents which will actually be referred to in the bundle, adds a further level of front-loading- preparation and anxiety in the run up to a final hearing. The report of the <a href="http://www.familylaw.co.uk/news_and_comment/report-of-the-financial-remedies-working-group-31-july-2014#.VHRDVjTat8E" target="_blank">FinancialRemedies Working Group</a> at para 28 proposes that all final hearings listed for 3 days or more should comply with the requirements set out in the <a href="http://www.judiciary.gov.uk/wp-content/uploads/2014/08/report-of-the-financial-remedies-working-grp-annex3.pdf">Statement on the efficient conduct of financial remedy final hearings allocated to be heard by a High Court Judge </a>. Whilst all of these onerous additional requirements are perfectly understandable from a judicial perspective, they leave the practitioner with further hoops to jump through, more to go wrong and more costs to justify. <br> <br> The 'Overriding Objective' provisions in both the FPR and CPR require individual cases to take their place, given the other resource demands which are made on the court. Not so with arbitration, where the primary focus is the 'fair resolution of disputes by an impartial tribunal without unnecessary delay or expense' (s 1(a) of the Arbitration Act 1996). The arbitrated case does not have to jostle for hearing time alongside 'quick applications', injunctions and care cases. <br> <br> In&nbsp; <a href="http://www.familylaw.co.uk/news_and_comment/j-v-j-2014-ewhc-3654-fam#.VHRD_jTat8E" target="_blank">J v J [2014] EWHC 3654 (Fam)</a> Mostyn J noted at para [53]: 'if parties wish to have a trial with numerous bundles then it is open to them to enter into an arbitration agreement which specifically allows for that'. Whilst this may have been something of a tongue in cheek comment, it has a serious point: the additional requirements being placed on lawyers in order to assist an already overburdened judiciary are not necessary if the parties wish to adopt their own bespoke procedure in arbitration. <br> <br> </st1></st1> <h2><st1><st1>What’s this Arbitration Act about? </st1></st1></h2> <st1><st1>The <a href="http://www.familyarbitrator.com/family-arbitration/the-act">Arbitration Act 1996 </a> (the Act) may be unfamiliar to many family lawyers. <br> <br> Its background is helpfully explained by <st1><st1>Cardiff <st1>University academic <a href="http://www.familyarbitrator.com/family-arbitration/arbitration-act-with-commentary">Wendy Kennet </a>. In short, the process rests on a contractual appointment of an arbitrator (via <a href="http://www.familyarbitrator.com/apply-for-arbitration/form-arb1-application-form">Form ARB1 </a> under the IFLA scheme), whose decision the parties agree in advance shall be binding, subject only to any 'challenge' available under the Act, and in a financial remedy case, final approval by the court. For the court’s likely approach in a financial remedy case, see Munby P in <em>S v S (Financial Remedies: Arbitral Award) </em>[2014] EWHC 7 (Fam),&nbsp;<a href="http://onlineservices.jordanpublishing.co.uk/content/en/FAMILYpa/Family_FLRONLINE_FLR_20141FLR1257" target="_blank">[2014] 1 FLR 1257</a>,&nbsp;at para [21]:&nbsp;'It could only be in the rarest of cases that it would be appropriate for the judge to do other than approve the order.' <br> <br> Grounds of challenge are set out in the Act at sections 67 (lack of jurisdiction), 68 (serious irregularity) and 69 (appeal on a point of law). Arbitration is not meant to darken the door of the court. However, the arbitrator, whose appointment rests upon a contractual basis has no coercive powers. Arbitration therefore takes place in the shadow of the law and parties to an arbitration know that the court can step in to support the process, in particular by granting a stay of competing legal proceedings commenced in defiance of an agreement to arbitrate the dispute (s.9), enforcement of the directions of the arbitrator, if required (s 42) the granting of a witness summons for people to attend before an arbitrator (s 43) and general injunctive relief (s 44). <br> <br> Both the arbitrator (s 33) and the parties (s 40) have a duty to promote the fair and expeditious resolution of the arbitration, pursuant to s.1 of the Act. Sections 1, 33 and 40 are the triangulation points of the Act. <br> <br> Whilst in commercial law the choice of substantive law is permitted (s 3), under the IFLA scheme this 'non-mandatory' section is disapplied, as all applications, must be determined in accordance with the law of <st1>England and <st1>Wales. <br> <br> Section 4 and Sch 1 to the Act set out which parts of the Act are 'Mandatory'. Non-mandatory sections can be applied either by scheme rules and/or parties to suit their preferences. The <a href="http://ifla.org.uk/cms/wp-content/uploads/2014/02/Rules-2014-3rd-edn-final.pdf">IFLA rules</a> set out a sensible scheme as to how the Act can work in the family context. The <a href="http://www.familyarbitrator.com/">FamilyArbitrator</a> website has published an annotated copy of these <a href="http://www.familyarbitrator.com/family-arbitration/the-rules">rules</a>, in the style of the Red Book commentary. <br> <br> </st1></st1></st1></st1></st1></st1></st1> <h2><st1><st1><st1><st1><st1><st1><st1>Judicial support for arbitration </st1></st1></st1></st1></st1></st1></st1></h2> <st1><st1><st1><st1><st1><st1><st1>The judges have been very supportive of the idea of family arbitration and this scheme, See, for example: <br> <br> </st1></st1></st1></st1></st1></st1></st1> <div style="margin-left: 20px;"> <st1><st1><st1><st1><st1><st1><st1><em>Lykiardopulo v Lykiardopulo</em> [2010] EWCA Civ 1315,&nbsp;<a href="http://onlineservices.jordanpublishing.co.uk/content/en/FAMILYpa/Family_FLRONLINE_FLR_20111FLR1427" target="_blank">[2011] 1 FLR 1427</a> per Thorpe LJ at para [69] 'is generally to be welcomed',<br> </st1></st1></st1></st1></st1></st1></st1><st1><st1><st1><st1><st1><st1><st1><br> </st1></st1></st1></st1></st1></st1></st1><st1><st1><st1><st1><st1><st1><st1><em>AI v MT (Alternative Dispute Resolution)</em> [2013] EWHC 100 (Fam),&nbsp;<a href="http://onlineservices.jordanpublishing.co.uk/content/en/FAMILYpa/Family_FLRONLINE_FLR_20132FLR0371" target="_blank">[2013] 2 FLR 371</a> per Baker J (paras [31] – [37] approving generally), and <br> </st1></st1></st1></st1></st1></st1></st1><st1><st1><st1><st1><st1><st1><st1><br> </st1></st1></st1></st1></st1></st1></st1><st1><st1><st1><st1><st1><st1><st1><em>W v M (TOLATA Proceedings; Anonymity)</em> [2012] EWHC 1679,&nbsp;<a href="http://onlineservices.jordanpublishing.co.uk/content/en/FAMILYpa/Family_FLRONLINE_FLR_20131FLR1513" target="_blank">[2013] 1 FLR 1513</a> (Fam) per Mostyn J 'much-to-be-welcomed scheme promoted by the <st1><st1>Institute of <st1>Family Law Arbitrators'.&nbsp; <br></st1></st1></st1></st1></st1></st1></st1></st1></st1></st1></div> <st1><st1><st1><st1><st1><st1><st1><st1><st1><st1> <br> Sir James Munby P stated in <em>S v S (Financial Remedies: Arbitral Award)</em> [2014] EWHC 7 (Fam),&nbsp;<a href="http://onlineservices.jordanpublishing.co.uk/content/en/FAMILYpa/Family_FLRONLINE_FLR_20131FLR1513" target="_blank">[2014] 1 FLR 1257</a> that an agreement to arbitrate under the IFLA scheme should be 'a single magnetic factor of determinative importance' (paras [18] – [19]) and 'There is no conceptual difference between the parties making an agreement and agreeing to give an arbitrator the power to make the decision for them' and an arbitral award was of its nature 'even stronger than a simple agreement between the parties'.(para [19])<br><br> </st1></st1></st1></st1></st1></st1></st1></st1></st1></st1><a href="http://www.familylaw.co.uk/news_and_comment/report-of-the-financial-remedies-working-group-31-july-2014#.VHRHizTat8F" target="_blank">PartIV of the Financial Remedies WorkingGroup</a> report proposes streamlining the process for bringing a claim under the Arbitration Act to the Family Court, if required, and sets out in <a href="http://www.familylaw.co.uk/system/redactor_assets/documents/1049/MAP_Annex_12.pdf" target="_blank">Annex12</a> best practice on the interface between the arbitration and the court.<br> <br> The <a href="http://ukcatalogue.oup.com/product/9780199676460.do">Jackson ADR Handbook</a> cites the launch of the IFLA scheme under its 'Key Recent Developments' (page 7).<br> <br> <h2>The Law Commission</h2> The Law Commission in its recent report on <a href="http://www.familylaw.co.uk/news_and_comment/law-commission-report-on-matrimonial-property-needs-and-agreements#.VHRH1DTat8E" target="_blank">MatrimonialProperty, Needs and Agreements</a>, whilst declining to propose that arbitral agreements should be considered to be Qualifying Nuptial Agreements, did state [7.40]: &nbsp;'The advantages of arbitration over court proceedings are privacy and the ability of the parties to control the proceedings by deciding what the arbitrator is to adjudicate upon.' The paper submitted to the Law Commission by IFLA, which also explains the workings of the scheme and relevant case law in detail, can be accessed <a href="http://www.familyarbitrator.com/wp-content/uploads/Family-arbitration-and-qualifying-nuptial-agreements.pdf">here</a>. <br> <br> <h2>Academic commentary and online guides</h2> To date the most comprehensive (per Baker J in <em>AI</em> ‘eloquent’) explanation of the scheme and relevant case law has been written by <a href="http://www.familyarbitrator.com/family-arbitration/peter-singers-family-arbitration-article">Sir Peter Singer</a>. <a href="http://www.familyarbitrator.com/wp-content/uploads/Family-Law-Finance-Arbitration-talk.pdf">Sir Hugh Bennet</a> has also persuasively described the advantages of the scheme. <br> <br> There are a number of very useful practical guides which are available. <br> <br> IFLA have published a guide for <a href="http://ifla.org.uk/cms/wp-content/uploads/2013/11/introductory_guide-for-public.pdf%20clients">clients</a> and the <a href="http://ifla.org.uk/cms/wp-content/uploads/2013/11/introductory_guide___practitioners.pdf">legal profession</a>. <br> <br> The FamilyArbitrator website have produced a short <a href="http://www.familyarbitrator.com/family-arbitration/overview">Overview</a>, <a href="http://www.familyarbitrator.com/family-arbitration/procedural-summaryprocedural">Procedural Summary</a> and useful (optional) checklists for parties and arbitrators to consider <a href="http://www.familyarbitrator.com/family-arbitration/checklist-pre-engagement-meeting">prior to signing the ARB1</a> and later at a <a href="http://www.familyarbitrator.com/family-arbitration/checklist-first-meetingappointment">first meeting with arbitrator</a>. <br> <br> <a href="http://www.familylawweek.co.uk/site.aspx?i=ed90447">Tim Scott QC</a> published a very helpful introduction to arbitration. <br> <br> You can find out how the IFLA scheme may hold particular advantages for those concerned in <a href="http://www.familylaw.co.uk/news_and_comment/arbitration-of-tolata-disputes-why-would-anyone-now-chose-to-litigate%23.VGzf4fmsU1Y">cohabitation/TOLATA disputes</a>. <br> <br> Nigel Shepherd <a href="https://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=0CCoQtwIwAQ&url=http%3A%2F%2Fwww.youtube.com%2Fwatch%3Fv%3DGDkXbJmeuSw&ei=teBsVNDyGOGIsQSf34KQAg&usg=AFQjCNHrn8Wl-vAsUGtzQ0lqa6YcqvUgnQ&sig2=yHVSkh455atrB1cqe5caVw">Nigel Shepherd</a> has taken to YouTube to explain how arbitration works. <br> <br> There is a <a href="https://www.linkedin.com/groups/FamilyArbitrator-4370850?gid=4370850&trk=hb_side_g">LinkedIn Discussion Group</a> devoted to family arbitration and you can catch most family arbitration news and developments via the <a href="http://www.familyarbitrator.com/blog">FamilyArbitrator blog</a> or the FamilyArbitrator Twitter account&nbsp;<a href="@FamArbOrg" target="_blank">@FamArbOrg</a>.<br> <br> There are many other helpful materials out there, not all of which can be highlighted here.<br> <br> <h2>How do I select an arbitrator?</h2> You can find a register of all qualified arbitrators on the <a href="http://ifla.org.uk/search/">IFLA website</a>. Parties may choose their own arbitrator to suit their particular dispute. If the parties, or their legal representatives, are unable to agree upon the identity of an arbitrator, IFLA will select one or select one from a shortlist.<br> <br> <h2>Future developments</h2> Two developments on the horizon. <br> <br> At the helm of the first is Alex Verdan QC and Deborah Eaton QC, in <a href="http://www.jordanpublishing.co.uk/practice-areas/family/news_and_comment/early-neutral-evaluations-in-private-law-children-disputes-the-way-forward%23.VGz5PfmsU1Y"> describing the resolution of a private children dispute by way of 'Early Neutral Evaluation'.</a> Alex told the <a href="http://www.resolution.org.uk/trainingandevents/events/?e_id=30076A74-D904-49B7-A378-C8739B950917">Resolution DR Conference 2014</a> that the parties agreed to appoint a private evaluator, having despaired of not getting on at the Central Family Court. The central idea is that the parties appoint a third party neutral evaluator by way of direction from the court, agreeing in advance that the decision will be binding upon them. The evaluator can hear the case and give a reasoned judgment which must then be returned to court for approval and conversion into an order of the court. This process sounds more closely related to arbitration than it does to 'early neutral evaluation' which is more commonly associated with a 'view' being provided after a review of the papers, not after the hearing of evidence. Either way, the development breaks new ground. Presently the IFLA scheme rules state that the resolution of private children decisions is beyond the scope of the scheme. However, with the Verdan/Eaton innovation, surely it is a matter of time before IFLA amends its scheme to provide for some private welfare disputes to be resolved in this way?<br> <br> At the helm of the second is Felicity Shedden who is an exponent of a process called <a href="http://www.sheddenfamilylaw.co.uk/Med-Arb-Information-for-clients.php">Med-Arb</a>. This allows parties 'stuck' in mediation to move seamlessly into arbitration. The idea of having a single mediator and arbitrator in both roles can be controversial in <st1>England and <st1>Wales. However, in <st1>Canada for example, the experience has been that parties appreciate the benefits of one streamlined process. Presently, a process which enables the parties to know with confidence that if they cannot resolve their dispute with 'mediator A' then they will move straight into a binding arbitral process with 'arbitrator B' may be of real interest to those who use mediation or who have mediation based practices.<br> <br> </st1></st1></st1><h2><st1><st1><st1>Books</st1></st1></st1></h2><st1><st1><st1>In terms of the books, Sugar and Bojarski’s excellent <a href="http://www.jordanpublishing.co.uk/practice-areas/family/publications/unlocking-matrimonial-assets-on-divorce-0%23.VG0I4PmsU1Y">Unlocking Matrimonial Assets on Divorce</a> has a chapter devoted to family arbitration by Sir Peter Singer. <a href="http://www.classlegal.com/ataglance">At A Glance</a> also has a very useful introduction and procedural summary. Dennis Sheridan has published <a href="http://bookshop.lawsociety.org.uk/ecom_lawsoc/public/saleproduct.jsf?catalogueCode=9781784460044">'Family Law Arbitration' via the Law Society</a>. You can read a review of his timely book <a href="http://www.jordanpublishing.co.uk/practice-areas/family/news_and_comment/book-review-family-law-arbitration-a-judicially-recognised-alternative-to-the-family-court%23.VG0JhfmsU1Y">here</a>. Lastly, for a comprehensive review of the Arbitration Act, the most accessible practitioner text I would suggest is <a href="http://eu.wiley.com/WileyCDA/WileyTitle/productCd-0470673982.html">'The Arbitration Act 1996: A Commentary</a>'.</st1></st1></st1> Rhys Taylor tag:www.familylaw.co.uk,2005:Article/107827 2014-11-24T15:38:00+00:00 2014-11-25T08:46:04+00:00 Strictly collaborative <strong>This article was written in support of Resolution's third&nbsp;<a href="http://www.resolution.org.uk/editorial.asp?page_id=956" target="_blank">Family Dispute Resolution Week</a>, running from 24–28 November 2014.&nbsp;This awareness-raising week aims to highlight the alternatives to court for separating couples and their families.<br><br>Support the campaign on Twitter using&nbsp;<a href="https://twitter.com/search?q=%23abetterway&src=typd" target="_blank">#abetterway</a> <a href="https://twitter.com/search?q=%23resolutionweek&src=typd" target="_blank">#ResolutionWeek</a> and&nbsp;<a href="https://twitter.com/search?q=%23familylaw&src=typd" target="_blank">#familylaw</a> </strong><br><br><hr>It may come as a surprise to non-collaborative lawyers (that’s a technical term) that a thoroughly uncollaborative debate still rages over whether or not practitioners should be allowed to practise what’s been dubbed 'collaborative lite'.<br><br> So what is collaborative law, in this week when we should all be making a special effort to direct our clients away from the doors of the court? Many family lawyers don’t even understand the practice although it’s been around in this country since 2003 and longer (naturally) in the US.<br><br> It’s like mediation to the extent that it’s Without Prejudice and confidential. It’s not like mediation in that lawyers are in attendance but their clients are in control of the process.<br><br> Clients choose their lawyers in the conventional way but then the lawyers, assuming they’ve been trained collaboratively, set up a series of roundtable meetings and, at the end of the process and assuming it’s successful, a consent order is filed with the court in the usual way. <br> <br> Its unique selling point is that the lawyers have to step down if the process fails and the parties end up going to court. And here are some tips guaranteed to derail the process and cost you your client:<br><br> <div style="margin-left: 20px;">(1) Don’t bother to screen your client for their suitability to the process. The fact that they are angry and distrustful and not ready to have any kind of conversation with the person who slept with their best friend/hit them/moved the family savings to an account in Belize, is likely to be a bar to finding a collaborative solution – at least any time soon. The process will fail, they’ll lose their trusted adviser and you’ll lose the case.<br><br> Having said that, there are a handful of very skilled collaborative practitioners who would see that as a challenge and be able to overcome all the seemingly insuperable obstacles. I am not one of that handful and you probably aren’t either.<br><br>(2) Have long positional chats with your client at the outset where you tell him or her what legal principals apply, the strength and weaknesses of their particular case, and precisely how you are going to make sure they get the best possible deal from their estranged partner.<br><br> The whole ethos behind collaborative law is that the couple have to make that journey together with guidance from their collaborating lawyers.<br><br>(3) Take no account of the identity and reputation of the lawyer who will be representing your client’s ex-partner. Assume automatically that they will approach the process in the same ethical, collaborative way that you do. One of the joys of practice as a collaborative lawyer is the unfamiliar but gratifying experience of discussing the legal issues of both clients’ cases with the other lawyer without needing to maintain your adversarial antennae. It allows you to open your mind to practical solutions that might otherwise have eluded you. And this really does require a degree of trust that will simply never be there with some practitioners. They have Trample the Weak, Hurdle the Dead stamped on their DNA so collaborate with them at your peril. Your client is entitled to rely on you for this kind of insider knowledge. Ask around if you haven’t heard of your opponent or, better still, try and influence the choice of the other lawyer so that it’s someone you respect and can work with.<br><br>(4) Ignore the fact that clients going through a painful and possibly frightening period in their lives don’t care about anything except keeping themselves and their families as safe as they can, both financially and emotionally. They have no interest in the process, only the outcome, so will be turned off if they hear too much about it.<br> So go on about the process in a thoroughly self-indulgent fashion, be inflexible about how to adapt it and make them feel patronised and alienated. That should derail it comprehensively.<br><br> Alternatively, think creatively about how to adapt it.<br><br> So what’s collaborative lite? It’s where you go through the practicalities of the process – roundtable meetings, no or minimal written communications, a collaborative approach – but without signing up to the collaborative agreement that means you have to step down if it fails. There are good arguments on both sides of that particular debate, but don’t bother to share them with your client.<br></div> <br>Collaborative law hasn’t taken off in the way we all hoped it would back in the heady early days. It’s not cheap. It does require the solicitors to embrace the possibility that they’ll voluntarily hand over their client if the process fails and the big fees start to clock up (it’s true – we all make the most money from cases that fail to settle and go to trial). And it makes us step outside our comfort zone of settling down in our office bunkers and firing off threatening emails on a daily basis. <br> <br> But it’s so worth it. Getting to know both sides. Watching them communicate in a loving, if sometimes wary, way. Helping them find a solution together while having a laugh every now and again, and deepening your professional relationship with your collaborative colleague. And you don’t need Claudia Winkleman to tell you and your collaborative partner that you’re a great team.<br><hr><strong>The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.</strong> Philippa Dolan tag:www.familylaw.co.uk,2005:Article/107825 2014-11-24T15:23:00+00:00 2014-11-25T16:56:33+00:00 New measures to tackle sham marriages and civil partnerships From 2 March 2015, major changes to the process for giving notice of marriage or civil partnership will come into effect. <br> <br> All couples will have to complete a longer notice period of 28 days before they will be able to marry or form a civil partnership in England and Wales. For couples where one or both of the parties is a non-EEA national with limited or no immigration status, the Home Office may extend the notice period to 70 days to investigate whether the case is a sham.<br> <br> Couples who are planning a marriage or civil partnership on or after 2 March 2015 but who give notice before that date will not be affected. <br> <br> From 2 March 2015, a new scheme to tackle sham marriages and civil partnerships in the UK will be introduced. A sham marriage or civil partnership is entered into by a couple who are not in a genuine relationship in order to seek to obtain an immigration advantage for one or both of them.<br> <br> The&nbsp;<a href="https://www.gov.uk/government/people/james-brokenshire" target="_blank">Minister for Security and Immigration James Brokenshire</a> has outlined his plans to tackle&nbsp;sham marriages and civil partnerships.<br> <br> <iframe width="640" height="360" src="//www.youtube.com/embed/EpGHqur5LYY?feature=player_embedded" frameborder="0" allowfullscreen=""></iframe> <br> In a statement laid before the House of Commons, James Brokenshire said:<br> <br> <blockquote> 'I am pleased to inform the House that, subject to Parliamentary approval of the necessary secondary legislation, I plan to implement important new provisions under part 4 of the <a href="https://www.gov.uk/government/collections/immigration-bill" target="_blank">Immigration Act 2014</a> to tackle sham marriages and civil partnerships on Monday 2 March 2015.<br> <br> Part 4 of the Act will give us a much stronger platform for effective, systematic action to disrupt and deter sham marriages and civil partnerships and prevent them gaining an immigration advantage.<br> <br> It will extend the marriage and civil partnership notice period from 15 days to 28 days for all couples in England and Wales marrying following civil preliminaries or forming a civil partnership.<br> <br> Couples involving a non-European Economic Area (<abbr>non-EEA</abbr>) national who wish to marry in the Church of England or the Church in Wales will be required to complete civil preliminaries and give notice at a register office.<br> <br> From 2 March 2015 I also plan to implement under part 4 of the Act a new referral and investigation scheme for proposed marriages and civil partnerships across the UK involving a <abbr>non-EEA</abbr> national who could benefit in immigration terms. All proposed marriages and civil partnerships involving a <abbr>non-EEA</abbr> national with limited or no immigration status in the UK, or who does not provide specified evidence that they are exempt from the scheme, will be referred to the Home Office. Where we have reasonable grounds to suspect a sham, we will be able to extend the notice period in these referred cases to 70 days in order to investigate and take appropriate enforcement or casework action where we establish a sham. A couple will be unable to get married or enter into a civil partnership on the basis of that notice if they do not comply with an investigation under the scheme.'<br> <br> </blockquote><blockquote>'By extending the notice period and channelling to the Home Office all proposed marriages and civil partnerships which could bring an immigration benefit, the new system will give us much more time and information to identify and act against sham marriages and civil partnerships before they happen and, where they do go ahead, we will have the evidence we need on file to be able to refuse any subsequent immigration application in terms which will withstand appeal. <br> <br> The referral and investigation scheme will be extended to Scotland and to Northern Ireland from 2 March 2015, subject to Parliamentary approval of the necessary secondary legislation. <br> <br> Those who give notice of marriage or civil partnership before 2 March 2015 will not be affected by the changes. <br> <br> Transitional arrangements will apply for couples where at least one party is resident overseas, who have made arrangements before 2 March 2015 for a marriage or civil partnership in England and Wales and who intend to give notice and get married or form a civil partnership in one visit on or after that date. Couples in this situation will be able to apply, at the time of giving their notice of marriage or civil partnership to the registration official, to have the notice period reduced to 15 days. <br> <br> Transitional arrangements will also apply for couples involving a <abbr>non-EEA</abbr> national who before 2 March 2015 have been granted, or have applied for and are later granted, a common licence to marry in the Anglican Church in England and Wales. Couples in this situation will be able to marry on the basis of that licence and will not be required to complete civil preliminaries before marrying.' </blockquote> The ministerial statement was also laid before the House of Lords by&nbsp;<a href="https://www.gov.uk/government/people/lord-bates" target="_blank">Lord Bates of Langbaurgh</a>. Jonathan Cailes tag:www.familylaw.co.uk,2005:Article/107823 2014-11-24T15:09:00+00:00 2014-11-24T15:21:56+00:00 CCMS now features urgent flag function New enhancement to Client and Cost Management System (CCMS) allows you to indicate if an application or amendment is urgent. <br><br>The urgent flag function will remove the need for you to contact the Legal Aid Agency's customer service team to let them know when an urgent item of work has been submitted. <br><h3></h3><h3>What is classed as urgent?</h3>Urgency is defined as work that:<br><ul><li>needs to be completed within 48 hours</li><li>is not already covered under the scope of the existing certificate (if a certificate exists)</li></ul>If an application or amendment does not fulfil the criteria given above, the urgent flag will be removed and the item will not be expedited.<br><br>If an application satisfies the criteria specified in regulation 46 of the Civil Legal Aid (Merits Criteria) Regulations 2013 you do not need to use the urgent flag.<br><br>A&nbsp;<a href="http://ccmstraining.justice.gov.uk/training-and-quick-guides/Quickguides" target="_blank">quick guide</a> to explain how to use the urgent flag is now available. <br><br>This does not have an impact on the current process for exceptional cases, which remains the same.<br><h3></h3><h3>Benefits</h3>Urgent work can be prioritised sooner and allocated to the right team straightaway.<br><h3></h3><h3>Information for immigration providers</h3>There are two types of emergency immigration work:<br><ol><li>Emergency – where work is to be done within 48 hours </li><li>Urgent emergency – where the above applies and removal is that same day or early the following day</li></ol>Only urgent emergency work should be highlighted using the urgent flag.<br><br>If you have an urgent emergency application or amendment, you can continue to contact the Legal Aid Agency at:<br><br>Telephone: 020 3334 5900<br><br>Email: <a href="mailto:emergency-immigrationapps@legalaid.gsi.gov.uk">emergency-immigrationapps@legalaid.gsi.gov.uk</a><br><br>If you need funding for an out-of-hours injunction in an immigration and asylum matter, you need to email <a href="mailto:asylum-out-of-hours@legalaid.gsi.gov.uk">asylum-out-of-hours@legalaid.gsi.gov.uk</a>.<br> Jonathan Cailes tag:www.familylaw.co.uk,2005:Article/107821 2014-11-24T14:10:00+00:00 2014-11-24T14:15:40+00:00 The Shared Parental Leave Regulations 2014 (SI 2014/3050) The Shared Parental Leave Regulations 2014 were published on 18th November 2014.<br><br>These Regulations introduce a new entitlement for employees who are mothers, fathers, adopters, or prospective adopters, or the partners of mothers or adopters, or prospective adopters, to take shared parental leave in the first year of their child’s life or in the first year after the child’s placement for adoption. The Regulations are made in exercise of powers inserted into the&nbsp;<a href="http://www.legislation.gov.uk/ukpga/1996/18/contents">Employment Rights Act&nbsp;1996</a> by the&nbsp;<a href="http://www.legislation.gov.uk/ukpga/2014/6/contents">Children and Families Act 2014</a>.<br><br>In Part 2, the Regulations confer the right to take shared parental leave (birth) where a mother who is entitled to statutory maternity leave, statutory maternity pay, or maternity allowance, curtails that leave, pay or allowance period; the balance of the leave, pay, or allowance period can be taken as shared parental leave if the other conditions for entitlement are satisfied.<br><br>For adoptions, Part 3 of the Regulations confers the right to take shared parental leave (adoption) where an adopter who is entitled to statutory adoption leave or statutory adoption pay curtails that leave or pay period; the balance of the leave or pay period can be taken as shared parental leave if the other conditions for entitlement are satisfied.<br><br>Regulation 4 sets out the conditions for entitlement for a mother and regulation 5 sets out the conditions for entitlement for a father or a spouse, civil partner, or partner of a mother. Regulations 20 and 21 set out the conditions for entitlement for an adopter and an adopter’s partner, respectively.<br><br>Certain conditions apply to the person claiming the entitlement to shared parental leave and others apply to the person with whom the claimant will be caring for the child. The claimant must satisfy substantive requirements, such as continuous employment, as well as procedural requirements, such as giving appropriate notices to the claimant’s employer. Regulations 8, 9 and 10 set out the notice and evidence requirements which need to be satisfied for shared parental leave (birth) and the equivalent provisions for shared parental leave (adoption) appear in regulations 24, 25 and 26.<br><br><br>Regulations 6 and 22 set out how many weeks of shared parental leave (birth) and shared parental leave (adoption), respectively, are available to a claimant or claimants. <br><br>The provisions on giving notices to request periods of leave, how those notices are to be treated, how they may be varied, and the limit on the number of notices are set out in regulations 12 to 16 for shared parental leave (birth) and in regulations 28 to 32 for shared parental leave (adoption).<br><br>Regulations 18 and 33 set out when an employer may require an employee to take a period of shared parental leave (birth) or shared parental leave (adoption), respectively, in the event of a change of circumstances.<br><br>Part 4 sets out the provisions on employment and earnings that must be satisfied by a claimant and the person with whom the claimant will be caring for the child.<br><br>Part 5 contains provisions applicable in relation to shared parental leave (birth and adoption). Those provisions include the ability to undertake work during a period of shared parental leave (regulation 37), additional redundancy protections (regulation 39), the right to return to work after a period of shared parental leave (regulation 40), and protections from detriment and dismissal attributable to the fact that a claimant took or sought to take shared parental leave (regulations 42 and 43).<br><br>The Schedule contains provisions modifying the regulations in various cases where a claimant, the person with whom the claimant was caring for the child, or the child, dies or an adoption placement is disrupted.<br><br>These Regulations are part of a package of legislative measures and the relevant impact assessment is the relevant impact assessment is the <em>Modern Workplaces: shared parental leave and pay administration consultation impact assessment</em> which was published in February 2013. A copy of that impact assessment can be obtained from the Department for Business, Innovation and Skills, Labour Market Directorate, 1 Victoria Street, London, SW1H 0ET. Copies have also been placed in the libraries of both Houses of Parliament.<br><br>The Shared Parental Leave Regulations 2014 are available to download <a href="http://www.jordanpublishing.co.uk/system/redactor_assets/documents/2111/uksi_20143050_en__1_.pdf">here</a>. Emma Patey tag:www.familylaw.co.uk,2005:Article/107819 2014-11-24T10:17:00+00:00 2014-11-24T11:25:58+00:00 View from the Foot of the Tower: Three important adoption decisions The Court of Appeal are still working their way through the backlog of appeals that were generated after the decision in <em>Re B-S</em> and the flurry of successful appeals that followed (combined with the test for appeals being lowered from 'plainly wrong' to 'wrong').&nbsp;Some of those appeals have been on the specific point of 'nothing else will do' and probing the boundaries of how literally those words are to be taken, or indeed whether they amount to a test at all.<br> <br> Three decisions have appeared in the last few weeks, and are important in establishing how far, if at all, appeals based on a failure of the Court to really establish that 'nothing else will do' can be pursued.<br> <br> All three are really grappling with whether 'nothing else will do' bites (and if so how hard) on an issue where the choice is between foster care and adoption. Specifically, if foster care is an option in the case (and it always is), to what extent does it have to be ‘ruled out’ in order to show that nothing else but adoption will do? All underlining is the author’s for emphasis. <br> <br> The first is&nbsp;<a href="http://www.familylaw.co.uk/news_and_comment/re-m-h-placement-order-correct-test-to-dispense-with-consent-2014-ewca-civ-1396#.VHMPBjTat8E" target="_blank"><em>Re M-H (Placement Order: Correct Test to Dispense with Consent)</em> [2014] EWCA Civ 1396</a>.&nbsp;In this case, the argument was about the merits of foster care as against adoption, and this had been a major argument in the original final hearing. The trial judge had rejected foster care and granted the Placement Order. That decision was upheld by the Court of Appeal when the parents appealed, in essence saying that foster care was an option that would do, and the judge had failed to properly establish that nothing else but adoption would do.<br> <br> The Court of Appeal in that case acknowledge that decisions about adoption and Placement Orders must be in relation to the statutory provision and that in applying that statutory provision, the Court must take account of the guidance given as to interpretation by the Court of Appeal in <em>Re B-S:</em><br> <br> <div style="margin-left: 20px;"> 'The "correct test" that must be applied in any case in which a court is asked to dispense with a parent's consent to their child being placed for adoption is that statutorily provided by the sections 52 (1) (b) and 1 (4) of the Adoption and Children Act 2002 interpreted in the light of the admonitions of the President in&nbsp;<a href="http://www.familylaw.co.uk/news_and_comment/adoption-re-b-s-adoption-application-of-threshold-criteria-2013-ewca-civ-1146#.VHMGl_mqlrE"><em>Re B-S (Children)</em> [2013] EWCA Civ 1146</a> which drew upon the judgments of the Supreme Court in&nbsp;<a href="http://www.familylaw.co.uk/news_and_comment/care-proceedings-re-b-care-proceedings-appeal-2013-uksc-33#.VHMGvvmqlrE"><em>In Re B (A Child) (Care Proceedings: Threshold Criteria)</em> [2013] UKSC 33</a> and rehearsed previous jurisprudence on the point. The "message" is clearly laid out in paragraph 22 of <em>Re B-S</em> and needs no repetition here.'</div> <br> However, the Court of Appeal set down a marker that over-reliance on the phrase 'nothing else will do' both at first instance and appeal is becoming visible and is to be deprecated:<br> <br> <div style="margin-left: 20px;"> 'However, I note that the terminology frequently deployed in arguments to this court and, no doubt to those at first instance, omit a significant element of the test as framed by both the Supreme Court and this court, which qualifies the literal interpretation of "nothing else will do". That is, the orders are to be made "only in exceptional circumstances and where motivated by the overriding requirements pertaining to the child's best interests." (See <em>In Re B</em>, para [215]). In doing so I make clear that this latter comment is not to seek to undermine the fundamental principle expressed in the judgment, merely to redress the difficulty created by the isolation and oft subsequently suggested interpretation of the words "nothing else will do" to the exclusion of any "overriding" welfare considerations in the particular child's case.<br> <br> It stands to reason that in any contested application there will always be another option to that being sought. In some cases the alternative option will be so imperfect as to merit summary dismissal. In others, the options will be more finely balanced and will call for critical and often anxious scrutiny. However, the fact that there is another credible option worthy of examination will not mean that the test of "nothing else will do" automatically bites.<br> <br> It couldn't possibly. Placement orders are made more often in anticipation of finding adoptive parents than with ones in mind. Plans go awry. Some adoption plans are over ambitious. Inevitably there will be a contingency plan, often for long term fostering. The fact of a contingency plan suggests that "something else would do at a push", the exact counterpoint of a literal interpretation of "nothing else will do", and it would follow that the application would therefore fail at the outset.<br> <br> The "holistic" balancing exercise of the available options that must be deployed in applications concerning adoption is not so as to undertake a direct comparison of what probably would be best but in order to ascertain whether or not the particular child's welfare demands adoption. In doing so it may well be that some features of one or other option taken in isolation would produce a better outcome in one particular area for the child throughout minority and beyond. It would be intellectually dishonest not to acknowledge the benefits. But this is not to say that finding one or more benefits trumps all and means that it cannot be said that "nothing else will do". All will depend upon the judge's assessment of the whole picture determined by the particular characteristics and needs of the child in question no doubt often informed by the harm which s/he has suffered or been exposed to.'</div> <br> In essence the phrase 'nothing else will do' does not fully capture the nuance of what the Supreme Court was saying, and that the existence of another option does not rule adoption out – the judge is to fully explore the whole picture and consider whether the options are capable of meeting the child’s needs. Nothing else will do as a concept had to be read in light of the more complex formulation that adoption is appropriate 'only in exceptional circumstances and where motivated by the overriding requirements pertaining to the child's best interests'.<br> <br> In&nbsp;<a href="http://www.familylaw.co.uk/news_and_comment/re-m-a-child-long-term-foster-care-2014-ewca-civ-1406#.VHMHSfmqlrE"><em>Re M (A child: Long-term Foster Care)</em> [2014] EWCA Civ 1406</a>, handed down 2 days later, the Court of Appeal are again faced with an argument about foster care being an option that could meet the needs of the child, meaning that the court could not be satisfied that 'nothing else will do'. In this case, the trial judge had rejected the application for a placement order, and imposed a care order with a care plan of fostering. (There are some additional complications in that the two supplementary judgments intended to clarify his decision muddied the waters as to whether the judge meant fostering to be a permanent plan or a holding position over a period of time to see if mother responded to therapy.) The Court of Appeal sent the case back for re-hearing.<br> <br> In relation to the issues about 'nothing else will do', the Court of Appeal said this:<br> <br> <div style="margin-left: 20px;"> '<strong>The Recorder was, rightly, anxious to respect the guidance given in&nbsp;<a href="http://www.familylaw.co.uk/news_and_comment/adoption-re-b-s-adoption-application-of-threshold-criteria-2013-ewca-civ-1146#.VHMHu_mqlrE"><em>Re B-S (Adoption: Application of s 47(5))</em> [2013] EWCA Civ 1146</a>. However, his interpretation of the recent jurisprudence may have led him astray.</strong> He said: </div> <br> <div style="margin-left: 40px;"> "72. I agree with the guardian that [L's] particular needs involve a decision being made as soon as possible as to whether adoption is appropriate, because her age, at 3 , makes it more likely that transfer to an adoptive placement would be more likely to be successful now, rather than later. With respect, this starts to suggest an approach which would contrary, however, to the guidance given in <em>Re B-S</em> and the earlier, recent authorities referred to above (sic). The temptation in every case, where no-one from the birth families will be able to care for a child of 3 in the relatively near future, will be to disregard alternatives to adoption because it is easier to find adoptive parents for younger, rather than older, children….." </div> <br> <div style="margin-left: 20px;"> The "recent authorities referred to above" are&nbsp;<a href="http://www.familylaw.co.uk/news_and_comment/care-proceedings-re-b-care-proceedings-appeal-2013-uksc-33#.VHMIXPmqlrE"><em>Re B (a child)</em> [2013] UKSC 33</a> and&nbsp;<a href="http://www.familylaw.co.uk/news_and_comment/care-proceedings-re-g-care-proceedings-welfare-evaluation-2013-ewca-civ-965#.VHMInPmqlrE"><em>Re G (Care Proceedings: Welfare Evaluation)</em> [2013] EWCA Civ 965</a>. What is said in these authorities about the need to consider all the options and to sanction adoption only if nothing else will do must be interpreted with a careful eye to the realities of a child's life. Delay is one of factors that always has to be taken into account in determining any question with regard to a child's welfare, see section 1(3) Adoption and Children Act 2002 (ACA 2002) and section 1(2) Children Act 1989 (CA 1989). But whether an individual child's welfare requires adoption depends on many other factors besides delay. A vital starting point for what those factors might be in a given case is the list in section 1(4) ACA 2002 (and its equivalent for Children Act proceedings in section 1(3) CA 1989) but these are not of course exhaustive lists. It is to be noted that the child's age features in both of them. </div> <br> <div style="margin-left: 20px;"><strong> The fact that speedy action will improve the prospects of a successful adoption for a particular child of a particular age must take its place in the overall appraisal of the case. Sometimes when considered with all the other factors, it will dictate that the court approves a plan for adoption of the child, even when full weight is given to the important reminders in recent cases, starting of course with <em>Re B</em>, that steps are only to be taken down the path towards adoption if it is necessary.</strong><br> <br> What is necessary is a complex question requiring an evaluation of all of the circumstances. As Lord Neuberger said at 77 of <em>Re B</em>, speaking of a care order which in that case would be very likely to result in the child being adopted: </div> <br> <div style="margin-left: 40px;"> "It seems to me inherent in section 1(1) [Children Act 1989] that a care order should be a last resort, because the interests of the child would self-evidently require her relationship with her natural parents to be maintained unless no other course was possible <em>in her interests</em>." (my emphasis) </div> <br> <div style="margin-left: 20px;"><strong> I emphasise the last phrase of that passage ("in her interests") because it is an important reminder that what has to be determined is not simply whether any other course is possible but whether there is another course which is possible and in the child's interests. This will inevitably be a much more sophisticated question and entirely dependent on the facts of the particular case. Certain options will be readily discarded as not realistically possible, others may be just about possible but not in the child's interests, for instance because the chances of them working out are far too remote, others may in fact be possible but it may be contrary to the interests of the child to pursue them.</strong><br> <br> Accordingly, if, as it appears may have been the case, the Recorder's reading of the recent authorities led him to put to one side the guardian's view (which he had accepted) that at L's age, a transfer to an adoptive placement would be more likely to be successful now than later, he was mistaken. I accept the submission of Mr MacDonald that the potential impact of delay on L goes beyond simply making it harder to find adopters for her, and includes, for instance, the possibility that it will make it harder for her to form secure bonds with her new carers. <strong>All the possible consequences of delaying in making a decision about her future should have been considered along with all the other material factors in the case.'<br><br><br></strong></div>And finally (at the time of writing, I suspect that there are more to come), <a href="http://www.bailii.org/ew/cases/EWCA/Civ/2014/1479.html"><em>CM v Blackburn and Darwen Borough Council</em> [2014] EWCA Civ 1479</a>. The trial judge here was dealing with a specific care plan – a dual-plan. A time-limited search for adoption and if that were not possible, the child would be placed in long term foster care. On a literal interpretation of 'nothing else will do', the Court in sanctioning that plan has said that fostering would do, so can it make the Placement Order that requires that 'nothing else will do'?<br><br>The Court of Appeal make two major points in relation to this.<br><br>First, that a dual plan of this kind is a contingency plan, something which is not required in the care plan (though desirable) and the court is not expressly endorsing that contingency. Where the dual plan is as a contingency, rather than a situation where there was a conditional element (ie that adoption would take place after successful therapy or medical treatment or something of that ilk*) the court was not saying that the contingency of foster care was something that would do instead of adoption, but simply recognising the possibility of failure of the adoptive search:<br><br><div style="margin-left: 20px;">'c) It is not necessary to have a contingency in a care plan although it is desirable. A timetable within which a local authority have to implement a substantive order once proceedings have concluded is beyond the jurisdiction of the court and is not part of the prescribed content of a care plan.<br><br>d) Recognising the possibility of failure by a contingency plan is appropriate. That is quite different from deciding that something other than adoption is required.<br><br>e) There is no objection in principle to dual planning in an appropriate case. This case was appropriate because the placement decision was neither conditional upon the happening of an event nor the success of some extraneous process such as therapy. It was not a decision that one of two options would do.'</div><br>[*This caveat is because the Court of Appeal had already decided in <a href="http://www.familylaw.co.uk/news_and_comment/placement-order-re-f-appeal-from-placement-order-2013-ewca-civ-1277#.VHMKZvmqlrE"><em>Re F (A Child)</em> [2013] EWCA Civ 1277</a> that in a case where there is an absence of evidence for the Court to be satisfied that adoption was going to be an achievable outcome for a child, because of extraneous factors, it would be wrong to make the placement order.]<br><br>The second thing that the Court of Appeal said in <em>CM v Blackburn</em> was this:<br><br><div style="margin-left: 20px;">'The statutory tests are not re-drawn. "Nothing else will do" is the conclusion of a proportionality evaluation after a process of deductive reasoning not a new presumption and not a standard of proof.'</div><br>And in more detail:<br><br><div style="margin-left: 20px;">'Turning then to the issue in this appeal. <strong>I do not accept that <em>Re B</em> and <em>Re B-S</em> re-draw the statutory landscape. The statutory test has not changed. I have set it out at [26] above. It is unhelpful to add any gloss to that statutory test as the gloss tends to cause the test to be substituted by other words or concepts. The test remains untouched but the court's approach to the evidence needed to satisfy the test and the approach of practitioners to the existing test without doubt needed revision.</strong> That can be seen in graphic form in the comments of the President in <em>Re B-S</em> at [30]:</div><br><div style="margin-left: 40px;">"we have real concerns about the recurrent inadequacy of the analysis of reasoning put forward in support of the case for adoption, both in the materials put before the court by local authorities and guardians and also in too many judgments. This is nothing new, but it is time to call a halt."</div><br><div style="margin-left: 20px;"><strong>Neither the decision of the Supreme Court nor that of this court in <em>Re B-S</em> has created a new test or a new presumption. What the decisions do is to explain the existing law, the decision making process that the court must adopt to give effect to Strasbourg jurisprudence and domestic legislation and the evidential requirements of the same.</strong> A court making a placement order decision must conduct a five part exercise. It must undertake a welfare analysis of each of the realistic options for the child having regard among any other relevant issues to the matters set out in section 1(4) of the 2002 Act (the 'welfare checklist'). <strong>That involves looking at a balance sheet of benefits and detriments in relation to each option. It must then compare the analysis of each option against the others. It must decide whether an option and if so which option safeguards the child's welfare throughout her life:</strong> that is the court's welfare evaluation or value judgment that is mandated by section 1(2) of the Act. It will usually be a choice between one or more long term placement options. That decision then feeds into the statutory test in sections 21(3)(b) and 52 of the 2002 Act, namely whether in the context of what is in the best interests of the child throughout his life the consent of the parent or guardian should be dispensed with. The statutory test as set out above has to be based in the court's welfare analysis which leads to its value judgment. <strong>In considering whether the welfare of the child requires consent to be dispensed with, the court must look at its welfare evaluation and ask itself the question whether that is a proportionate interference in the family life of the child.</strong> That is the proportionality evaluation that is an inherent component of the domestic statutory test and a requirement of Strasbourg jurisprudence.<br><br><strong>That is what 'nothing else will do' means. It involves a process of deductive reasoning. It does not require there to be no other realistic option on the table, even less so no other option or that there is only one possible course for the child. It is not a standard of proof. It is a description of the conclusion of a process of deductive reasoning within which there has been a careful consideration of each of the realistic options that are available on the facts so that there is no other comparable option that will meet the best interests of the child.</strong> The words of Lord Nicholls in <a href="http://www.bailii.org/uk/cases/UKHL/2001/70.html"><em>In re B (A Minor) (Adoption: Natural Parent)</em> [2001] UKHL 70, [2002] 1 WLR 258</a> cited with approval in the Supreme Court in <em>Re B</em> remain apposite:</div><br><div style="margin-left: 40px;">"[16] … There is no objectively certain answer on which two or more possible courses is in the best interests of a child. In all save the most straightforward cases, there are competing factors, some pointing one way and some another. There is no means of demonstrating that one answer is clearly right and another clearly wrong. There are too many uncertainties involved in what, after all, is an attempt to peer into the future and assess the advantages and disadvantages which this or that course will or may have for the child."</div><br>And in this passage seems to go further than <em>Re M-H</em> and <em>Re M</em> in suggesting that the presence <em>of an available and reasonable option</em> still does not prevent the Court from making a Placement Order:<br><br><div style="margin-left: 20px;">"It is in the very nature of placement proceedings that in many of them there will be alternative options that are at least hypothetically feasible and which may have some merit. <strong>The fact that, after consideration of the evidence, the court on an analysis of the options chooses adoption over another option does not mean that such a choice is tainted because something else may have been reasonable and available.</strong> The whole purpose of a proportionality evaluation is to respect the rights that are engaged and cross check the welfare evaluation i.e. the decision is not just whether A is better than B, it is also whether A can be justified as an interference with the rights of those involved. That is of critical importance to the way in which evidence is collated and presented and the way in which the court analyses and evaluates it."</div><br>It certainly seems that appeals that are based on a Court making Placement Orders in preference to an alternative of long-term fostering would need more than just the “nothing else will do” point to succeed, and the appeal would need to be based on the failure of the Court to engage with the balancing and proportionality exercises, and that the shorthand of “nothing else will do” is not a substitute for the fuller nuances of what is required in order to make a decision that permanently separates a child from their family.<br><hr><a href="http://www.familylawawards.com/2014-winners-2">Andrew Pack is the winner of the 2014 Family Law Commentator of the Year award.</a><br><br><strong>The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.</strong> Andrew Pack tag:www.familylaw.co.uk,2005:Article/107817 2014-11-24T10:00:00+00:00 2014-11-24T09:59:13+00:00 Re C (A Child) (No 2) [2014] EWFC 44 <strong>Neutral Citation Number: [2014] EWFC 44<br> Case No: DX13P00730<br> <br> IN THE FAMILY COURT<br> Royal Courts of Justice<br> Strand<br> London<br> WC2A 2LL<br> <br> Date: 21 November 2014<br> <br> </strong> <div style="text-align: center;"> <strong>Before :<br> <br> SIR JAMES MUNBY<br> PRESIDENT OF THE FAMILY DIVISION<br> <br> - - - - - - - - - - - - - - - - - - - - -<br> <br> Re C (A Child) (No 2)<br> <br> - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - <br> <br> Mr Julien Foster (appearing pro bono instructed by the Bar Pro Bono Unit) for the father<br> Ms Lucy Reed (instructed by Battrick Clark) for the mother<br> Ms Donna Cummins (of Lyons Davidson) for the child<br> <br> Hearing date: 12 November 2014<br> <br> - - - - - - - - - - - - - - - - - - - - -<br> </strong><strong></strong> </div> <strong><br> Approved Judgment<br> <br> SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION</strong><br> <br> <strong>[1]&nbsp;</strong>This matter first came before me on 7 July 2014. Following that hearing I handed down a judgment on 6 August 2014: <em>Q v Q, Re B (A Child), Re C (A Child)</em> [2014] EWFC 31. That judgment dealt with two other cases, <em>Q v Q</em> and <em>Re B (A child)</em> as well as with this case, referred to in that judgment, and here, as<em> Re C (A Child)</em>.<br> <br> <strong>[2]&nbsp;</strong>There is no need to repeat here what I said in my previous judgment. I set out the facts (paras 38-41). I considered the relevant law (paras 58-79). I discussed the way forward (paras 83-88). The essential problem was that the father’s application for “exceptional” funding in accordance with section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), made as recently as 1 July 2014, had, hardly surprisingly, not yet been determined. I said this (para 88):<br> <br> <div style="margin-left: 20px;"> “If the father’s application for public funding under LASPO is successful, then all well and good. If it is not, then I will have to consider what, if any, further order to make. I am inclined to think that, for all the reasons already indicated, the father in <em>Re C</em> requires access to legal advice beforehand and representation at the fact-finding hearing to avoid the very real risk of the court being unable to deal with the matter justly and fairly and of his rights under Articles 6 and 8 being breached. I am inclined to think, therefore, that, if he is unable to afford representation and pro bono representation is not available, and if there is no other properly available public purse, the cost will have to be borne by HMCTS." </div> <br> <strong>[3]&nbsp;</strong>In accordance with the order I made following the hearing on 7 July 2014, the matter came before me again on 29 September 2014.<br> <br> <strong>[4]&nbsp;</strong>The father’s application for “exceptional” funding had not been determined. A letter dated 29 September 2014 to the court from the Public Law Project (PLP), which was assisting the father in his application for “exceptional” funding, gave a detailed and illuminating account of the process which the Legal Aid Agency (LAA) had adopted in considering the father’s changing financial circumstances. This culminated in the following letter from the LAA to the PLP dated 26 September 2014:<br> <br> <div style="margin-left: 20px;"> “Please note that the means assessment in respect of your client was based on his financial circumstances at the application. Following the change in his financial circumstances, it was incumbent on your client to complete fresh means assessment form to reflect his current position. In addition, your client will need to provide a letter from his landlord confirming what he currently pays as rent on a weekly or monthly basis. We also need a letter from the relevant Local Authority stating that his Housing Benefit Entitlement has ceased and that he is no longer in receipt of this Benefit. We have requested this additional information because whilst your client has provided us with a receipt a proof of rental payment, the receipt does not indicate what the payment relates to. Neither does it confirm that Housing Benefit is no longer being paid. As reiterated in our letter of 8 September, your client will also need to submit a fresh application for Exceptional Funding.” </div> <br> <strong>[5]&nbsp;</strong>I record without comment the observation of the PLP in its letter to the court:<br> <br> <div style="margin-left: 20px;"> “It is therefore the position of the LAA that [the father], having first applied for funding on 1 July 2014 and having cooperated fully with the submission of all financial information requested of him and having demonstrated his prima fade financial eligibility, is now no further along with the application process than as if that application had never in fact been made. At no point during this process has the LAA addressed the merits of [his] case, or considered whether funding should be granted in view of the requirements of fairness and [his] Convention rights.” </div> <br> <strong>[6]&nbsp;</strong>Following the hearing on 29 September 2014 I made an order giving various directions. The order recited the mother’s position as follows:<br> <br> <div style="margin-left: 20px;"> “Counsel for the Mother informed the court (upon her client’s express instructions) that the Mother states she cannot contemplate being present in the court room whilst the Father is present and that she cannot contemplate being asked questions directly by him, and that as such she will be unable to give evidence or to prove her allegations unless a) there are special measures in the form of a video link in place and b) the father is able to cross examine through a professional advocate. It is therefore the Mother’s position that should the fact finding hearing proceed without the father having secured legal representation for the fact finding hearing the article 6 rights of the mother and child would be breached, and that should the mother be compelled to give evidence and be asked questions directly by the Father her article 3 rights not to be subjected to inhuman or degrading treatment would be breached (notwithstanding any right to refuse to answer specific questions on the ground of self-incrimination).” </div> <br> <strong>[7]&nbsp;</strong>The order also contained the following recital:<br> <br> <div style="margin-left: 20px;"> “The court expressed concern at the level of delay to date in this case as a result of the difficulties securing representation for the Father, noting that it is now not possible to fix this matter for hearing until 5 January 2014, and confirmed that it is imperative that this fixture is effective.” </div> <br> <strong>[8]&nbsp;</strong>I listed the matter for a further hearing before me on 12 November 2014 for further directions and to determine, inter alia, the issue:<br> <br> <div style="margin-left: 20px;"> “Whether or not Her Majesty’s Courts and Tribunals Service ought to be directed to fund all or part of the costs of the Father’s legal representation and if so on what basis”. </div> <br> I directed that a copy of the order was to be served by the President’s Office upon Her Majesty’s Courts and Tribunals Service and the LAA. That was done. I also invited the Bar Pro Bono Unit to indicate in writing whether or not it was able, pending resolution of the father’s legal aid application, to provide a representative to advise and/or assist him regarding certain specified matters, notwithstanding that it might not be able to provide him with representation at the fact finding hearing.<br> <br> <strong>[9]&nbsp;</strong>On 29 October 2014 my office was notified by an official in the Ministry of Justice that the father had been granted legal aid, conditional on his acceptance of it. The information was communicated to the parties by the PLP on 3 November 2014 in an email which said that the father had been offered exceptional case funding, subject to his agreeing to pay a monthly contribution. I was told at the hearing that he had agreed. In these circumstances the problems identified in my previous judgment fell away. There was, accordingly, no need for me to determine the issue referred to in paragraph 8 above. It is better that I say nothing more on the point. It should be determined, if it has to be, in a case where the matter has not been resolved, as here, by the grant of legal aid.<br> <br> <strong>[10]&nbsp;</strong>In the circumstances, there was no need for the Bar Pro Bono Unit to answer the questions I had posed for its consideration. Very helpfully, it arranged for the father to be represented before me, pro bono, by Mr Julien Foster. I am immensely grateful to Mr Foster (and, in relation to the previous hearing, Ms Janet Bazley QC) as also to the Bar Pro Bono Unit, for everything they have done to assist the father and the court. They deserve recognition and praise, as also Ms Francesca Wiley who appeared for the father pro bono at an earlier stage in the proceedings.<br> <br> <strong>[11]&nbsp;</strong>In my previous judgment (para 15) I set out certain statistics helpfully provided by the Bar Pro Bono Unit.<a id="ref1" href="#fn1"><sup>1</sup></a> In a letter to the court dated 5 November 2014 it has provided up-dated information, for which I am grateful. It says that:<br> <br> <div style="margin-left: 20px;"> “… in the first 8 months of 2014, the Unit received a total of 1491 applications (compared with 1019 in the same months of 2013). 350 of those applications were family law children cases, which compares with 291 similar applications over the whole 12 months of 2013 (the 2013 figure, in turn, representing a 70% increase from the 171 children applications in 2012) … 96 of the 206 pieces of work which could not be placed [in the first 8 months of 2014] were family law children cases … These 96 family law children cases were … considered by Unit reviewers as deserving of assistance, but … no assistance could be provided.” </div> <br> The profession is doing what it can to help – and that needs to be recognised and applauded. But it is unable to meet the demand. And in any event, I repeat what I said more recently in <em>Re D (A Child)</em> [2014] EWFC 39, para 31:<br> <br> <div style="margin-left: 20px;"> “It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.” </div> <br> <strong>[12]&nbsp;</strong>The funding issues having been resolved, all that was left for me to do at the hearing on 12 November 2014 was the giving of directions to ensure that the fact finding hearing could proceed. That done, I remitted the matter for hearing in the Family Court by His Honour Judge Wildblood QC.<br> <br> <strong>[13]&nbsp;</strong>Ms Lucy Reed, on behalf of the mother, had prepared submissions at a time when it was not yet clear that the funding issues had been finally resolved. She raised a number of important points on which there is no need for me to rule and which, as I have already said, are best left for decision if and when the need arises. That said, I think there may be advantage in setting out, in an Annex to this judgment, the core of her submissions. I do so merely to place them on the record, as I have already placed on the record, in paragraph 6 above, the mother’s stance at the previous hearing on 29 September 2014. I express no views whatever as to whether or not they are well-founded.<br> <br> <em>Annex: Ms Reed’s submissions on behalf of the mother</em><br> <br> <div style="margin-left: 20px;"> “24. The failure of the court to progress and resolve the proceedings, and the adverse impact of them upon the mother is a continuing interference with the Article 8 rights of both mother and child to their private and family life. Insofar as it is caused entirely by the absence of the father’s legal representation this interference is neither proportionate nor necessary in a democratic society.<br> <br> 25. Self evidently, the failure for an entire year to put the mother in a position where she is permitted to attempt to prove her allegations and get these proceedings over and done with is a breach of her Article 6 rights to a fair trial – firstly because she has been afforded no trial at all, and secondly because the delay causes irremediable prejudice to the mother’s case through twin effects of the fading of memory and of chronic litigation stress and emotional exhaustion upon the mother’s ability to give her best evidence. The longer the delay the worse the breach.<br> <br> 26. If the court is unable to resolve matters today and the fixture in January is lost the breaches of the mother’s substantive rights will be compounded.<br> <br> 27. Conversely, if the court were to proceed with the fact finding hearing without the father being represented the mother would seek to rely upon her convention rights in arguing that the court was proposing to act unlawfully.<br> <br> 28. The breaches that the mother alleges would flow from any such direction would be caused through two mechanisms:<br> <br> a) Firstly, through the lack of proper notice to the mother of the father’s case in reply, of the evidence he seeks to present or of any counter allegations made against her (notice),<br> <br> b)&nbsp;Secondly, through the father’s direct cross-examination of the mother as a litigant in person (cross-examination).<br> <br> 29. The failure to give proper notice of the father’s case would amount to a breach of Article 8 and 6 insofar as the mother is entitled to a fair trial of her allegations in order to protect her Article 8 rights and those of the child.<br> <br> 30.&nbsp;The mother understands and accepts that the father is entitled to challenge her evidence through cross examination. However, she is absolutely clear that she is unable to countenance the father directly questioning her through cross-examination in person. She does not feel able to give evidence in these circumstances. If she is unable to give evidence this would amount to a breach of Article 8 and 6 insofar as the mother is entitled to a fair trial of her allegations in order to protect her Article 8 rights and those of the child.<br> <br> 31.&nbsp;If the mother were able to give evidence (or were compelled either by the court or force of circumstance to do so) she is clear that she would be unable to give her best evidence. This is particularly significant (as in so many instances of domestic / sexual abuse) where there is limited independent evidence and the burden is upon the mother as complainant. Placing the mother in a situation where she would be compelled to attempt to give evidence in order to protect herself and her child from the father’s future involvement would amount to a breach of Article 8 and 6 insofar as the mother is entitled to a fair trial of her allegations in order to protect her Article 8 rights and those of the child and a fair trial includes enabling a vulnerable witness to give her best evidence. Further, it would amount to a breach of Article 3 in that the cross examination of her as a victim of a serious sexual assault by the perpetrator of that assault would amount to inhuman or degrading treatment. Such an experience would be prohibited by statute for victims of such crimes in the context of criminal proceedings. Articles 6 and 3 are of course absolute rights.<br> <br> …<br> <br> 35. Further, the experience of cross examination would itself grossly humiliate the mother and would cause her to act against her will in facing the father and being subjected questioning by him directly – that is to say that the act of cross examination in person would not just be a failure of the state to respond appropriately to inhuman or degrading treatment in the form of rape, but would itself amount to further instance of inhuman or degrading treatment.<br> <br> 36. For the avoidance of doubt the mother says that there are no special measures short of the legal representation of the father by a competent advocate that would alleviate this difficulty. Those avenues have been exhaustively considered and discounted at previous hearings.” </div> <br> <sup id="fn1"><a href="#ref1">1</a></sup>&nbsp;I said this: “In 2012 … it received 171 applications for assistance in family law children cases, in 2013, 291 applications and, in the first five months of 2014, 205 applications. The Unit, I am told, is usually unable to help in cases where the work involved extends beyond three days (including preparation time). It is unable to meet the demand. In the first five months of 2014, it was unable to place 49 family children cases.” <br> Samantha Bangham tag:www.familylaw.co.uk,2005:Article/107815 2014-11-24T09:09:00+00:00 2014-11-24T09:22:09+00:00 GCSEs and A-level results 'suffering' as a direct result of parental break-up <h2>Young people’s futures at stake as 19% don’t get the exam results they were hoping for; 15% move schools; 32% say parents tried turning them against one another; 14% turn to alcohol.</h2>Young people feel their exam results are suffering as a direct result of parental break-up according to a major new survey of teens and young adults published today. The survey of 14-22 year olds also finds that parental separation is leading young people to turn to alcohol and skipping lessons, while some admit to experimenting, or thinking about experimenting, with drugs. <br> <br> Jo Edwards, Chair of Resolution – the body representing 6,500 family law professionals in <st1>England and <st1>Wales which commissioned the research – said:<br><br><blockquote>'These new findings show the wide-ranging impact of divorce and separation on young people. It underlines just how important it is that parents going through a split manage their separation in a way that minimises the stress and impact on the entire family, especially children, otherwise their exam results could suffer. Divorce and separation is always traumatic, but there is a better way to deal with it.'</blockquote></st1></st1><h2><st1><st1><strong>Exam results suffering:</strong> </st1></st1></h2><st1><st1>The survey of 14-22 year olds asked how a parental break-up had directly affected them. The survey found that one in five (19%) say they didn’t get the exam results they were hoping for. The majority (65%) say that their GCSE exam results were affected while 44% say A-levels (44%) suffered. What’s more, 15% said they had to move schools, which may have had a knock-on effect on exam results. <br> <br> The poorer-than-expected exam results might partly be explained by changes in behaviour, as a direct result of parental separation, that the survey uncovered: Almost a quarter (24%) said that they struggled to complete homework, essays or assignments. And more than one in 10 (11%) said they found themselves 'getting into more trouble at school, college or university,' with 12% confessing to skipping lessons. <br> <br></st1></st1><h2><st1><st1><strong>Turning to alcohol and changing eating habits:</strong> </st1></st1></h2><st1><st1>The survey finds that parental break-up can impact on young people’s health. 14% of the young people surveyed said they started drinking alcohol, or drinking more alcohol than previously,while almost three in ten (28%) said that they started eating more or less than previously. Arguably most concerning of all, 13% admitted to experimenting, or thinking about experimenting with drugs as a result of their parents’ break-up. <br> <br></st1></st1><h2><st1><st1><strong>Pressure from parents:</strong> </st1></st1></h2><st1><st1>The survey also finds that many teens and young adults felt that their parents placed additional stresses on them during the process of break up. 32% of respondents said one parent tried to turn them against the other. And more than 1 in 4 (27%) said their parents tried to involve them in their dispute.<br> <br></st1></st1><h2><st1><st1><strong>Impact of social media – pictures of new partners can be upsetting: </strong></st1></st1></h2><st1><st1>The survey also finds that the stress of their parents’ break-up for young people can be made worse by the impact of social media. Almost a quarter (23%) said that they found out on social media that one of their parents had a new partner. One in five (20%) said that their parents have upset or embarrassed them on social media, by posting something about their separation or divorce.<br> <br> Other findings include almost 1 in 5 (19%) saying that they completely lost contact with one or more grandparents – a crucial issue in the context of the Government’s recently-launched “Family Test,” designed to ensure that policies support children’s relationships with their grandparents after divorce.<br> <br> Speaking on the first day of 2014’s Family Dispute Resolution Week, Jo Edwards said: <br><br><blockquote>'Each year around 100,000 children under 16 see their parents divorce. Almost half of all break-ups (48%) occur when there is at least one child in the relationship, and with 230,000 people in <st1>England and <st1>Wales going through a divorce each year (and many more separating), this is an issue that affects hundreds of thousands of families in <st1>Britain every year. <br> <br>Therefore it is crucial that couples do everything possible to resolve disagreements in an amicable way that minimises stress on all family members – particularly any children they may have. <br> <br>It’s clear from our survey that children are suffering as a result of parental separation and that in some cases it’s exacerbated when parents place additional stresses on their children during their break-up. But there is a better way to manage your separation. That’s why we would encourage all separating couples to explore their options for an amicable divorce. There’s a free guide at <a href="http://www.resolution.org.uk/separatingtogether">www.resolution.org.uk/separatingtogether</a> about the options available. Speak to a Resolution member, who will help you to find the right way forward for you, your family, and your children.'</st1></st1></st1></blockquote></st1></st1>Molly Baker, a 16 year old from <st1>Sheffield, was 7 when her parents decided to split up, although their divorce wasn’t finalised until three years ago. She said: <br> <br><blockquote>'Having to live between two houses during the week means that often it can be difficult and stressful to remember all of my books and homework, for example, two days in advance. The divorce also affected my primary education because I would get taken out of lessons to talk to teachers about how I was feeling or about what was happening now in the proceedings, which meant I missed out on time in class. As I got older, it became easier to focus just on school work and receive the correct support and understanding in secondary education.'</blockquote> Emma Austin, Home School Support Worker at <st1>Frederick <st1>Bremer <st1>School who recently appeared on Channel 4's Educating the <st1>East End, said:<br><br><blockquote>'As someone who works with children every day, I witness the implications of family breakdown which can often have a devastating impact on children including on their school life.'</blockquote> <strong>Separation: what options are available for separating couples? </strong><br> <br>There are many options available to couples to manage their separation, including mediation, collaborative practice and arbitration, together with solicitor negotiation. <br> <br> These processes support couples to work together to decide what happens to their children after their separation, and how money and assets such as the family home will be divided. This can be quick and cost effective, giving people more control and enabling them to resolve their dispute and move on with their lives.<br><ul><li>Mediation helps couples work things out together. It is not a form of relationship counselling, or a way to help a couple get back together. Instead it helps couples who are separating decide how to end their relationship. During mediation the couple, helped by a trained mediator, talk through the issues (such as money, children or any other consequences of the separation) that they need to solve, and work out what is best for them and their children.&nbsp;</li><li>The collaborative process helps people work through the issues they need to resolve, with each partner having a specially trained lawyer by their side at each meeting and often a family therapist and financial advisor also. This process is a private way to solve problems without having to go to court, and offers each party support and legal advice as they go.</li><li>Family arbitration is a way of reaching a decision about finances or property for separating couples. Instead of going to court, both parties agree on the appointment of a family arbitrator to rule on specific issues of dispute. At the start of the process the couple agree to be bound by the arbitrator’s decision.</li><li>Solicitor negotiation - if mediation, arbitration or the collaborative process are not right, each party’s solicitors can negotiate an agreement, without the need for a lengthy court process. Issues between separating couples are often successfully resolved with the support and expertise of a Resolution member – in fact it is one of the most common ways of reaching agreement.</li><li>Negotiating your own agreement can be the cheapest and easiest way to reach a settlement following separation. This option isn’t suitable for everybody, but it can work if the couple have mutually agreed to separate, remain on good terms and generally agree on issues relating to their property and any children they have. It is still important to take legal advice to ensure the implications of the agreement are fully understood, and to ensure it is legally binding.&nbsp;</li><li>Going to court will be the right option for some people, because agreement can’t be reached or there is a particularly difficult or unique aspect to the case. There is usually a legal requirement for couples to attend a Mediation Information and Assessment Meeting (MIAM) before the court process begins, to see whether mediation or another process is right for them. Even if one or both parties decides to go to court, an agreement can be reached before a Final Hearing, and Resolution members will try to ensure this happens, and keep the stress and conflict to a minimum. If the couple cannot reach a final agreement, the judge will make a binding decision on what he or she thinks is fair.</li></ul> Resolution’s research in 2013 found that 50% of <st1><st1>UK adults agree that methods of divorce and separation such as mediation, negotiation and family arbitration are good for the wellbeing of children.<br><br><img src="/uploads/redactor_assets/pictures/2109/Family_Dispute_Resolution_Week_2014_education_infographic.jpg"></st1></st1></st1></st1></st1></st1></st1><div style="text-align: center;"><st1><st1><st1><st1><st1><st1><st1></st1></st1></st1></st1></st1></st1></st1></div> tag:www.familylaw.co.uk,2005:Article/107813 2014-11-24T08:50:00+00:00 2014-11-24T09:41:14+00:00 MOJ plan to centralise divorce proceedings lacks clarity Solicitor & family law arbitrator, Tony Roe, Principal of Berkshire firm,&nbsp;<a href="http://www.tonyroesolicitors.com/" target="_blank">Tony Roe Solicitors</a>, says that there is a marked lack of clarity from the Ministry of Justice about the final number and identity of courts likely to be processing divorces in England and Wales by the end of next year.<br><br>Mr Roe submitted a Freedom of information request to the MoJ, following the President of the Family Division’s recent judgment in&nbsp;<a href="http://www.familylaw.co.uk/news_and_comment/in-the-matter-of-180-irregular-divorces-rapisarda-v-colladon-no-2-2014-ewfc-35#.VC0WQcXt98E" target="_blank"><em>Rapsidara v Colladon</em></a>. That case concerned 180 petitions of Italian nationals issued in 137 different courts in England and Wales.179 of the 180 divorcing couples had falsely claimed that one of them lived at an address in Maidenhead.&nbsp;<a href="http://www.familylaw.co.uk/news_and_comment/centralised-divorce-processing-by-this-time-next-year#.VHLz8jTat8E" target="_blank">Munby P indicated that, within a year, there will be fewer than 20 courts in which divorces can be processed</a>. <br><br>As well as asking for details in relation to courts local to his firm on the South Eastern Circuit, Mr Roe asked for a likely final list of all the courts that will remain able to process divorce petitions following the implementation of any decision concerning this matter.<br><br>The MoJ reply stated that when choosing a 'Single Point of Entry', the divorce centre does not have to be the Designated Family Centre (DFC) and 'operationally it may make sense that a separate venue is chosen to ease workforce pressures ... or because divorce work has already been centralised within an area.'<br><br>Mr Roe said, 'The MoJ has told us that the decisions on which courts/offices will process divorce petitions have already been made by each HMCTS region with the exception of the South East, London and South West where decisions are due to be made by the end of November. Despite our request, the MoJ omitted to tell us what the outcome of the decisions already made were.'<br><br>Mr Roe said that some interesting information was revealed. The MoJ stated, 'In the South East region the proposal is that Bury St Edmunds will be the point of entry for divorce petitions. In the South West region the proposal is Southampton. This means that divorce petitions will be processed at those courts/centres unless they require a hearing. Those cases which require a hearing will be transferred to the most suitable local Family Court hearing venue and this is likely to include the courts you listed.' &nbsp;<br><br>Implementation of changes to which courts process divorce petitions will be phased depending on the HMCTS region, says the MoJ. It says that the current dates for each region are:<br><br><div style="margin-left: 20px;">London / SE – October 2015<br>Midlands – January 2015<br>North East – November 2014<br> North West – November 2014<br> South West – April 2015<br>Wales – January 2015</div><a href="http://www.tonyroesolicitors.co.uk/admin/news.php?ID=308" target="_blank">The full FOI request and reply can be found&nbsp;here.</a><br> tag:www.familylaw.co.uk,2005:Article/107811 2014-11-21T15:07:00+00:00 2014-11-21T15:21:32+00:00 Parents to get complete picture of child development From September 2015, health and early years practitioners will work side by side to improve outcomes for young children.<br> <br> <a href="https://www.gov.uk/government/people/daniel-poulter" target="_blank">Health Minister Dr Dan Poulter</a> and&nbsp;<a href="https://www.gov.uk/government/people/sam-gyimah" target="_blank">Childcare and Education Minister Sam Gyimah</a> will today (21 November 2014) announce that integrated health and early years reviews for 2-2&nbsp;year olds will be rolled out next year. <br> <br> Currently, health and early years reviews of young children are carried out separately. By integrating them, parents will get a more complete picture of their child, drawing on the expertise of health visitors and early years practitioners. <br> <br> Age 2 is a key development point where problems such as speech delay and behavioural issues emerge. Integrating these assessments will help avoid duplication and work towards giving parents the support they need. <br> <br> Integrated reviews will mean bringing together the healthy child programme review at&nbsp;2-2 and the early years progress check at age 2 years. <br> <br> The announcement comes as the Department for Education publishes <a href="/system/redactor_assets/documents/2105/DFE-RR350_Integrated_review_at_age_two_implementation_study.pdf">a report</a>, led by the National Children’s Bureau on a 2-year pilot of integrated reviews from 2012 to 2013. <br> <br> The report found that parents preferred this joined-up approach, and take-up of the reviews increased as a result. Integrated reviews will mean health and early years professionals will share information and may carry out the reviews together, giving parents a better picture of their child’s progress and reducing duplication. <br> <br> Health Minister Dr Dan Poulter said:<br> <br> <blockquote> 'This report shows that integrating health and early years reviews is better for children and their parents - giving a more complete picture of their child’s development and supporting children to the best start in life.'<br> </blockquote> Childcare and Education Minister Sam Gyimah said:<br> <blockquote> <br> 'The early years count and this new approach will reassure parents they have the information they need to support their children when they are growing up to give them the best possible start in life.<br> <br> This is a fantastic example of government departments working together to improve the services on offer to parents.' <br> </blockquote> The Early Intervention Foundation has today also published a report, ‘<a href="http://www.eif.org.uk/early-years-2/" target="_blank">Getting it right for families: review of integrated systems and promising practice in early years</a>’, which has been welcomed by government.&nbsp;<br> Jonathan Cailes tag:www.familylaw.co.uk,2005:Article/107801 2014-11-21T09:50:00+00:00 2014-11-21T10:25:03+00:00 5 things you (probably) didn't know about Family Law Online <ul><li>There are over 50 automated forms in the&nbsp;<a href="http://www.jordanpublishing.co.uk/practice-areas/family/publications/practice-notes#">PracticePlus</a> vault</li><li><a href="http://www.jordanpublishing.co.uk/practice-areas/family/publications/practice-notes">PracticePlus</a> has 40+ different topics covered in detailed Practice Notes</li><li>There are currently 272 live PSL updates within&nbsp;<a href="http://www.jordanpublishing.co.uk/online-services/family-law">Family Law Online</a></li><li><a href="http://www.jordanpublishing.co.uk/online-services/family-law">Family Law Online</a> has over 2.5 million page hits so far this year</li><li><a href="http://www.jordanpublishing.co.uk/practice-areas/family/publications/family-law-0">Family Law</a> journal has published over 300 case summaries this year</li></ul><br>More facts coming next week ...<br><br><a href="https://twitter.com/jordansfamlaw"><img src="/uploads/redactor_assets/pictures/1981/twitter.jpg" alt="" style="width: 33px; float: left; margin: 0px 10px 10px 0px;"></a>#familylawfacts<br><br><br>Fancy a trial to&nbsp;<a href="http://www.jordanpublishing.co.uk/online-services/family-law">Family Law Online</a> (including <a href="http://www.jordanpublishing.co.uk/practice-areas/family/publications/practice-notes#">PracticePlus</a>)?&nbsp;<a href="http://www.jordanpublishing.co.uk/online-services/family-law">Click here</a> to find out more.<br><br><br> tag:www.familylaw.co.uk,2005:Article/107799 2014-11-21T09:25:00+00:00 2014-11-21T09:32:50+00:00 Ofsted announces new plans for inspection of children’s homes A new inspection framework will put experiences of vulnerable children at the heart of how children's homes are inspected.<br><br>Ofsted has announced proposals for a tough new inspection framework to improve standards in children’s homes. The plans will put the experiences and outcomes of the most vulnerable children in our society at the heart of how homes are regulated and inspected.<br><br>The&nbsp;<a href="http://www.ofsted.gov.uk/resources/inspection-of-childrens-homes-consultation-document" target="_blank">consultation</a> sets out the criteria for ‘good’ as the benchmark and minimum standard that children and young people should expect. The current ‘adequate’ judgement will be replaced by a judgement of ‘requires improvement’. The move brings this important area of work in line with Ofsted’s other inspection remits.<br><br>Focusing squarely on the journey of children and young people, Ofsted plans to make an overarching judgement on the ‘Overall experiences and progress of children and young people living in the home’ instead of the previous ‘overall effectiveness’ judgement.<br><br>Inspectors will additionally make a key judgement on ‘How well children and young people are helped and protected’. If a children’s home is ‘inadequate’ in this area, and therefore not protecting children or promoting their welfare, it will automatically be graded ‘inadequate’ overall. Inspectors will also award a graded judgement on the impact and effectiveness of leaders and managers.<br><br>Instead of a blanket policy to return for a full inspection within 6-8 weeks where a home is judged inadequate, Ofsted is also proposing a more proportionate, risk based, approach. Inspectors will determine the timing and nature of the next visit based on the nature of the concerns, their severity, and impact on children and young people. <br><br><br>The inspectorate is making its registration, inspection and enforcement practice of homes more robust in parallel with the new programme of regulatory reform proposed by the Department for Education. These new reforms from government introduce quality standards for the first time and no longer have a benchmark of ‘minimum’ so Ofsted will be much better placed to drive improvement across the sector. <br><br>Debbie Jones, Ofsted’s National Director for Social Care, said:<br><br><blockquote>'The residential care sector supports some of our most vulnerable children and young people and so our inspection must shine a spotlight on what works well. We want children’s homes to provide the best possible care while improving children’s life chances and helping them to successfully manage their lives as young adults.<br><br>“We also recognise the diversity of provision in the residential sector and that one size does not fit all. We are proposing a flexible model for inspection, which allows inspectors to use their professional judgement to evaluate the effectiveness and impact of the home on the experiences of children and young people. <br><br>I encourage all those with knowledge and experience in children’s homes to contribute their views about our proposals to strengthen inspection of this significant part of the children’s social care system.'</blockquote>The consultation will close on 13 January 2015 and the new framework will take effect from April 2015. Jonathan Cailes tag:www.familylaw.co.uk,2005:Article/107795 2014-11-20T11:28:00+00:00 2014-11-20T11:42:11+00:00 Parents talk about the benefits of sharing parental leave Couples who have shared the care of their child in the first year after birth have had great experiences, says the&nbsp;<a href="https://www.gov.uk/government/organisations/department-for-business-innovation-skills" target="_blank">Department for Business, Innovation & Skills</a>.&nbsp;<br> <br>Parents who shared parental leave said they believe that it has not only benefited their children but also themselves as individuals, their relationships and their careers. <br> <br> <iframe width="640" height="360" src="//www.youtube.com/embed/gER9WRrpFYM?feature=player_embedded" frameborder="0" allowfullscreen=""> </iframe> <br> <br>From April 2015, parents will have greater choice in how they share time off work and care in the first year of their child’s life. The new rules also apply to adoption or surrogacy.<br><br><a href="https://www.gov.uk/shared-parental-leave-and-pay" target="_blank">Click here to check your eligibility</a>. <br><br>If&nbsp;you’re an employer,&nbsp;<a href="https://www.gov.uk/shared-parental-leave-and-pay-employer-guide" target="_blank">click here to find out more about Shared Parental Leave</a>. Jonathan Cailes tag:www.familylaw.co.uk,2005:Article/107793 2014-11-20T08:40:00+00:00 2014-11-20T14:58:22+00:00 Legal aid cuts 'not thought through' The Ministry of Justice is on track to meet its main objective of significantly reducing in a short timeframe spending on civil legal aid. However, it is less clear to what extent it has met its other objectives of reducing unnecessary litigation and targeting legal aid at those who need it most, according to today’s report from the&nbsp;<a href="http://www.nao.org.uk/" target="_blank">National Audit Office</a>.<br><br>In their report,&nbsp;<a href="http://www.familylaw.co.uk/system/redactor_assets/documents/2091/Implementing-reforms-to-civil-legal-aid1.pdf"><em>Implementing reforms to civil legal aid</em></a>, the NAO concludes that, in implementing its reforms, the Ministry of Justice did not think through early enough the impact of the changes on the wider system, and does not know whether people are eligible for legal aid are able to get it.<br><br>The Ministry set out in November 2010 its proposals for reform of legal aid. It reduced fees paid to civil legal aid providers by 10% between October 2011 and February 2012. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 introduced further changes which were implemented in April 2013, including a reduction in the range of issues for which civil legal aid is available and changes to the financial eligibility criteria for receiving legal aid.<br><br>The NAO estimates that the reforms could reduce spending on civil legal aid by 300m a year in the long term. The Legal Aid Agency funds significantly fewer cases because of the reforms, thereby reducing the amount of litigation funded directly by the taxpayer.<br><br>Amyas Morse, head of the National Audit Office, said:<br><br><blockquote>'The Ministry of Justice is on track to make significant and quick reductions in its spending on civil legal aid. However, it has been slower to think through how and why people access civil legal aid; the scale of the additional costs to the Ministry likely to be generated by people choosing to represent themselves; and the impact on the ability and willingness of providers to provide legal services for the fees paid.Without this understanding, the Ministry’s implementation of the reforms to civil legal aid cannot be said to have delivered better overall value for money for the taxpayer.'</blockquote>The Ministry expected that removing funding for civil legal aid for private family law matters would divert people away from courts and increase mediation referrals by 9,000 per year. However, there were 17,246 fewer mediation assessments in 2013-14, a 56% decrease from 2012-13. Litigation has only just started to decrease in the areas of family law no longer covered by civil legal aid. In the year following the changes, there has been a 30% increase in the number of family court cases in which neither party has legal representation. This is likely to create extra costs for the Ministry and wider government, with the NAO estimating additional cost to HM Courts & Tribunals Service of at least 3m a year, together with direct costs to the Ministry of approximately 400,000.<br><br>There may also be costs to the wider public sector if people whose problems could have been resolved by legal aid-funded advice suffer adverse consequences to their health and wellbeing as a result of no longer having access to legal aid.<br><br>The Ministry has reduced fees for providers without a robust understanding of how this would affect the market, and its monitoring has been limited. The NAO analysed the amount of legal aid funded face-to-face advice being started by providers in local authority areas across England and Wales. This showed that in 14 local authorities no providers based in the area started any face-to-face legal aid funded work during 2013-14. The Agency does not know why and therefore cannot be confident that it is targeting funding at those most in need.<br><br>Today’s report finds that the Ministry did not estimate the scale of the wider costs of the reforms – even those that it would have to bear – because it did not have a good understanding of how people would respond to the changes or what costs may arise. Among the NAO’s recommendations is that the Ministry develop measures to evaluate more fully the impact of the reforms.<br><br>Speaking in response to today’s National Audit Office report on the civil legal aid reforms, Jo Edwards, Chair of&nbsp;<a href="http://www.resolution.org.uk/" target="_blank">Resolution</a>, said: <br> <br><blockquote>'The MoJ and their colleagues at the Treasury will no doubt welcome the findings of today's report, which sets out the reduction in spending. However, the NAO has confirmed what those of us who work with separating families have been warning of for years: that these cuts were poorly thought through and that they’ve put the courts under more pressure.<br><br>With more people representing themselves, family cases invariably take longer, taking up more of the courts’ time and resource – with the result that the family courts really are at breaking point.<br><br>The reforms have also not had the effect the government stated they would – diverting more separating couples away from the courts. Mediation referrals went down, not up, in the year following the legal aid changes, by some 56%.<br><br>What’s more, the report highlights the unquantifiable impact on other areas of public sector spending. Separation is stressful, and this is made even worse if people don’t have access to legal advice – there is inevitably an impact on their health and well being, and their financial circumstances, for which the state ends up footing the bill elsewhere.<br><br>The Government needs to commit to a full impact assessment as soon as possible in the light of this report. 300m a year sounds like a lot of money, but when you take into account the devastating impact divorce and separation can have on people’s lives, particularly the most vulnerable members of society, then the financial, social, and emotional costs far outweigh the savings.'</blockquote><a href="/system/redactor_assets/documents/2091/Implementing-reforms-to-civil-legal-aid1.pdf">The full report,&nbsp;<em>Implementing reforms to civil legal aid</em>, is available to download here.</a><br>