Comment

Public Access and Child disputes

In the past few months I have seen a significant increase in public access (sometimes called ‘direct access’) approaches from potential clients in private law children disputes. This is perhaps unsurprising when the latest figures from Cafcass (in May 2018) show that they received a total of 3,704 new private law cases in that month. This is the third highest total for the month of May since records began. To put these figures into context between April 2017 and March 2018 Cafcass received a total of 42,058new private law cases.This figure shows an 3.8% increasecompared with the previous financial year.

Having recently written a book on the topic (shameless plug: How to Represent Yourself in the Family Court: A Guide for Litigants in Person), perhaps I should take some responsibility for the increase in court applications. Figures from the Ministry of Justice last year stated that neither the applicant nor respondent were represented in 36% of disposals, compared with 34% in the previous quarter. That means parents (sometimes family members) are going to court to negotiate the arrangements for their children without the benefit of any legal representation.

In many ways, I think this is madness. Our children are the most important people in our lives. They mean the world to us. The rules in the family court are complicated. I am absolutely convinced that parents get better outcomes in court where they have the benefit of proper legal representation. It also in my view helps reduce conflict, stress and relationships. This is one of the reasons that I was so frustrated by the government when they significantly reduced legal aid in private law children cases. They obsessed about the short term financial savings and ignored the short, medium and long term health, social and indeed financial savings of providing representation and advice in cases involving children. The real losers are indeed the children.

I suspect it is also the case that if legal aid was there to support parents in disputes concerning children there would be less rather than more cases going to court, as lawyers would negotiate a sensible child focused approach to any such disputes.

I appreciate that lawyers can be expensive. But you receive tremendous support, expertise and indeed value.

So what is public access? Parents and family members (often grandparents from my experience) seeking to make a court application concerning children go directly to a barrister, rather than instruct a solicitor who then instructs the barrister. There obviously can then be significant savings for the client.  Although the barrister’s role remains essentially the same, the client would be acting in person and having to do a lot more of the work which the solicitor would have undertaken.

Many clients find this much easier, costs effective and more satisfying. Which comes back to why I have had so many enquiries recently. If the case is too complex for the client to manage themselves, then I will also recommend that they instruct a solicitor. I think (having been one myself) that most solicitors undertake a fantastic job for their clients and are real assets. But I accept that we need to be more creative to ensure that parents (and family members) in cases concerning children are properly advised and represented. I am not convinced that the answer is always for more litigants representing themselves. As without proper legal representation they are not getting the best outcomes for their children.

I will re-enforce this view with my final statistics. Research published by Cafcass in November last year, found that 30 per cent of the 40,599 private law applications involving Cafcass in 2016-17 had been to court before. The majority returned within two years, and almost a third had been to court at least twice before. One child had been the subject of eleven cases between 2005 and 2017. Makes you think doesn’t it?

Jason M Hadden MBE is a barrister at St Ives Chambers

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Grandparents, the law and spending time with their grandchildren

Comment

Grandparents, the law and spending time with their grandchildren

For many children their grandparents are the most important people in their lives. Their confidant, their babysitter, guardian, best friend and the producer of the best cakes anyone can ever make. Not to mention or their stories. Did I mention their stories? Ok, sometimes repetitive, but damn good stories. So it is something of anomaly that they do not have an automatic right to see their grandchildren should their children (the parents) separate or some family feud develop. It always saddens and frustrates me when grandparents come to see me (which they too often do) to say that there has been a falling out, or a new partner or some issue which they can barely remember and as a consequence they are no longer allowed to see their grandchildren.

On any level this cannot be in the best interests of the children or indeed of society. I appreciate that there are times when bad things (and sometime really bad things) may have happened, which means that it is absolutely prudent and necessary for such relationships to be severed, but this is often the extreme. Children deserve to have (where safe) relationships with grandparents. It informs their identity, their heritage and indeed their ethnicity.

I pause, to state a vestige interest: I had grandparents. Ok. Its out there.

The statistics from the MOJ on this issue are galling. Grandparents have made over 2,000 applications for child arrangements orders. These figures are on the rise. They also do not reflect the complete picture, as many grandparents are making applications in the nominal name of their own children (the “father” or “mother”) to see the grandchildren.

But grandparents face an additional hurdle though the Court when seeking to spend time with the grandchildren. They require the permission of the Court, to actually be allowed, to apply to the Court, for an order (a s8 order) to spend time with the child. So for grandparents it is a two step process.

Firstly seek permission to make an application to spend time with the child; then if they are successful and only then, can they make an application to actually spend time with the child.

The Court will consider each application individually, and will look at a number of issues when deciding whether to grant permission for an application to be made by the grandparent.

There can be exceptions under s.10(5)(c)) but otherwise they have to meet the criteria as set out in s.10(9). This is the actual law bit (stick with it). The Court will firstly consider the welfare needs of any children, and whether if by allowing an application to go ahead, it would cause risk or harm to a child. The Court will look at the nature of the application, and the applicant’s connection to the child or children. The Court will also have to consider the views of the parents. 

I know. Its complicated. Unnecessarily so. Too many grandparents bulk at a system which put such hurdles up against them; causing them to give up on such significant relationships.

It is only when (and if) that permission is granted can they apply to the Court to see the grandchildren. The key however is that there is no authority creating a presumption of leave in favour of a grandparent. Each case is to be looked at on its merits. Which often creates delay, undue stress and of course costs. In most cases I venture it makes a fractured family relationship even worse.

It is claimed that this additional step is in place “to act as a filter to sift out those applications that are clearly not in the child’s best interests”.

In 2010 the then Labour Government produced a Green Paper setting out an intention to remove the requirement to seek permission of the court. The Family Justice Review was then set up in March 2010 and supported by the Coalition Government when it came into government. The Review reported in November 2011 that “the need for grandparents to apply for leave of the court before making an application for contact should remain. This prevents hopeless or vexatious applications that are not in the interests of the child”.

The Government accepted this recommendation and this remained the government position of the Coalition and current Conservative Government. I think this position and the current state of the law is wrong. Grandparents are not randomly making vexatious applications to see their grandchildren. In an open society we should make it easier for an access to justice and where safe a desire to bring families together, or guarantee such relationships.

This additional burden is unnecessary and undesirable. It should be abolished. It is an additional layer to create disharmony between the family members and is not in my opinion child focused or family focused. It is interesting to note that in Scotland, ministers are considering a legal presumption that children stay in touch with grandparents after a divorce or separation, giving a strong signal to couples, courts and families. This must be right. As a barrister specialising in children law, I am all too aware that the welfare of the child is the court’s paramount consideration. Grandparents being in their lives is rarely not in their welfare.

The law not only needs to reflect; it needs to act.

The financial cost for grandparents of such applications can be significant (they can always save money by buying my book : How To Represent Yourself in the Family Court: A guide to understanding and resolving family disputes (awkward plug) (available on Amazon and all good bookshops) but the emotional cost of losing or failing to develop such relationships can be even more extreme. There should be a legal presumption that children do stay in touch with their grandparents. The law can put in whatever checks and balances it requires to protect children (as it does now). But getting this right is in everyones best interests.

Jason M Hadden is a barrister specialising in children law at St Ives Chambers

Comment

Comment

Who is best to determine the welfare of a child? Parents or the Court?

Yates & Anor v Great Ormond Street Hospital

 

Who is best to determine the welfare of a child? The courts or the parents? It is an impossible question with often, many impossible answers.

 

Charlie (Charles) Gard; a name that has been appearing in national newspapers for the last 10 months. Every mention of his name brings vast discussion and public debate, yet the Supreme Court’s decision on 8 June 2017 and the impending decision from the European Court of Human Rights, may well mean that Charlie’s fight for life could sadly be over. 

 

Charlie Gard is a 10-month old baby suffering from genetic mutation and irreversible brain damage.  He cannot move, swallow, see, hear or cry.  His current life expectancy can be measured only in months but his parents are determined to fight for his life.  Nucleoside therapy is available and a doctor is willing to conduct such treatment for Charlie in the US, which the parents wish to pursue.  However, medical practitioners at Great Ormond Street Hospital believe that such treatment is not in the child’s best interests. 

 

This is, therefore, the foundation of the court case.  Doctors caring for Charlie issued an application in the Family Division of the High Court in February 2017 seeking to declare it lawful to withdraw artificial ventilation and to provide only palliative care to Charlie.  They believe this is in the child’s best interests.  The parents disagree. 

 

Charlie’s parents have raised over £1.3m to cover the costs of treatment in the US. Standing in their way, however, is the hospital and the court.

 

The key issue is that the treatment offered in the US would not cure Charlie’s condition, but potentially limit its destruction.  Indeed, the treatment was deliberated by doctors in the UK in the earlier stages of Charlie’s life.  However, as time has progressed, the doctors in the UK have concluded that the treatment sadly would not benefit Charlie and the most appropriate course of action would be to let the child, as Mr Justice Francis stated in the High Court, “die with dignity”. 

 

This case has brought to light several fundamental points of law but, perhaps most notably, the idea that the court and hospital can have greater power than the parents to make decisions for their child’s care.  Counsel for the appellant, Richard Gordon QC, argued two grounds of review.  Firstly, that it was neither necessary nor proportionate for the State to override the parents’ legitimate choice of treatment.  Secondly, that it is outside of the jurisdiction of the court and the hospital’s powers as a public authority, to prevent a person seeking to arrange or deliver the treatment discussed in the absence of proof of ‘significant harm’.  Mr Gordon stated that for the doctors to make such significant decisions without considering the wishes of the parents was “state intrusion on a massive scale”.

 

In Lord Justice McFarlane’s leading judgment, he stated that moving Charlie to America for treatment “would be likely to expose him to continued pain, suffering and distress” (para114). After all, the court’s paramount consideration being the welfare of the child. The court trying not only to balance competing interests but also, at the heart of their decision, the life of Charlie Gard.

 

McFarlane LJ stating what many of us feel, that “for the parents, this is a devastating outcome”.  Yet all hope is not lost for Charlie’s parents.  Despite the recent Supreme Court decision to deny the parents an appeal of the Court of Appeal’s decision, the European Court of Human Rights ordered for Charlie to be kept alive until midnight on Monday 19 June 2017. 

 

The parents were granted an application under Rule 39 of the European court’s procedure rules for urgent interim measures (which are only granted under exceptional circumstances). This meant that the parents were able to convince the court that if such measures were not granted, an imminent risk of irreversible harm was posed to Charlie.  Originally, the European Court of Human Rights granted such relief until midnight on Tuesday 13 June, though this has now been extended to Monday 19 June.  This time will allow for the court to consider whether an arguable case exists, that Article 8 (the right to privacy and family life) has been breached.

 

Whilst we await the court’s decision over the appeal of this delicate and widely publicised issue, the next hope for Charlie and his parents is that they can appeal the decision and keep Charlie alive. Sadly, these discussions are far too often laid at the door of the court. It is, for the court, a balancing exercise considering the welfare checklist, with often no winners.

 

Co-written by

 

Jason M Hadden, barrister at St Ives Chambers, Birmingham

Poppy Watson, law student at the University of Birmingham

Comment

A judgment of words and numbers

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A judgment of words and numbers

The government’s bill allowing for it to trigger Article 50 had but two clauses and 137 words (this article has three times as many), yet in many quarters was criticised for its brevity. A similar minimalistic approach by the Court of Appeal has in contrast brought almost universal enthusiasm.

The case in question BS (Congo) v Secretary of State for the Home Department [2017] EWCA Civ 53 concerned an African immigrant and whether or not he should be deported from the UK. The court dismissed the government’s appeal and ruled that he could not be removed from the country, despite being convicted of a criminal activity.

Of greater interest was the fact that the 'short judgment' by Lady Justice Rafferty was merely 24 paragraphs long and ran to fewer than 1,200 words. She confirmed that:

'This is a short form judgment which, with the encouragement of Sir Terence Etherton MR, judges of the Court of Appeal may in future use for appellate decisions in appropriate cases. This appeal raises no issue of law, precedent or other matters of general significance and the relevant facts and documentary material are set out in the judgment under appeal and are not in dispute.'  

The key to its brevity is of course that last sentence: that this was a relatively simple case for the court to consider.

I have far too often, sat scribbling, every word from judgments often lasting more than two or more hours. It can be painstaking and dare I say, on occasion laborious. In straightforward cases this marks a departure from the long-standing tradition of long, invariably wordy judgments, but it should be noted that this is part of a concerted effort by the judiciary. There is a very conscious agenda by the Master of the Rolls to simplify judgments. Legal commentators were rightly excited by the judgment of Mr Justice Peter Jackson in Lancashire County Council v M [2016] EWFC 9, due to its use of plain English. That judgment was clear, concise and very easy to read. The work of Lady Justice Rafferty appears to be more of the same. That said, from a cursory look at www.familylaw.co.ukthe latest case, of Norman v Norman [2017] EWCA Civ 49runs to 14,967 words, but as Lady Justice Gloster confirms therein that 'this case raises important issues…'

It is as ever with the law, a matter of balance or indeed one of judgment.

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Do litigants in person have an unfair advantage?

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Do litigants in person have an unfair advantage?

It has been very clear for some time that the number of litigants in person (LIPs) appearing before the civil and family courts without legal representation has increased significantly. The catalyst has been the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which took many civil and private law children and family cases out of scope for legal aid in England and Wales from 1 April 2013.

Recent government statistics confirm that in 34% of private law disputes neither party has the benefit of legal representation from either a barrister or a solicitor. This means that many such litigants are not afforded the right to legal advice, understanding or justice. But does this balance itself out elsewhere within the process?

The Court of Appeal in the case of Agarwala v  Agarwala [2016] EWCA Civ 1252 raised fresh concerns about the direct impact of litigants of person on the judiciary. The matter before the court related to appeal arising from a family dispute over an interest in a property and I will trouble the reader no further with the specifics of the case, but more particularly with the Court’s postscript.

Lady Justice King was clearly and rightly frustrated that this litigation had been running almost continuously for 7 years.

That it had in her words, ‘taken up countless court and judge hours as both parties, incapable of compromise, have bombarded the court with endless applications, such that Ms Jones now tells the court the judge has had to make orders that neither party may make an application without the leave of the court. The refusal of either party to accept any ruling or decision of the court has meant that the court staff and judge have been inundated with emails, which they have had to deal with as best they could, with limited time and even more limited resources. The inevitable consequence has been that matters have been dealt with “on the hoof” on occasion without formal applications or subsequent decisions being converted into formal rulings or orders.’

Lady Justice King conceded that, ‘whilst every judge is sympathetic to the challenges faced by litigants in person, justice simply cannot be done through a torrent of informal, unfocussed emails, often sent directly to the judge and not to the other parties. Neither the judge nor the court staff can, or should, be expected to field communications of this type. In my view judges must be entitled, as part of their general case management powers, to put in place, where they feel it to be appropriate, strict directions regulating communications with the court and litigants should understand that failure to comply with such directions will mean that communications that they choose to send, notwithstanding those directions, will be neither responded to nor acted upon.’

The comments by Lady Justice King give further evidence to what is already known by court users, that the court system is bursting at the seams from the impact of the recent reforms. It simply does not have the financial resources to manage the problem. It should be noted in passing, that many solicitors acting for parties against LIPs suffer the same difficulties. It is frequently and unfairly that the party who can afford solicitors often subsidizes the LIP with the cost in preparing bundles, drafting additional court documents and indeed often replying to a similar ‘torrent of informal, unfocussed emails’. This occurs often when they are the respondent to the proceedings brought by the LIP. The fact is that the case management powers to which the court refers are already in place (the FPR for example), but what is needed is proper and consistent management by the court. It is sadly becoming all too common for LIPs to email directly the courts and judges where solicitors and barristers would never dare. Many LIPs are attending court having not complied with court orders. Often courts shrug their collective shoulders and attempt to plough on with the case. What is imperative is that fairness prevails and to that end that the court rules are complied with by all. Fairness works both ways. Litigants in persons should not by accident or design obtain an unfair advantage as t the expense of others by a lack of legal knowledge or understanding. For there to be fairness for those represented and unrepresented it is vital that the court complies with its own rules and observe these comments from Lady Justice King.

Jason M Hadden is a barrister at St Ives Chambers

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