Comment

The deprivation of a child's liberty

The making of a secure accommodation order lies at the extreme end of the court’s powers. However, they are not uncommon. They are, in fact, fairly regularly used in relation to teenagers who put themselves in risky and harmful situations, apparently through choice. Such an application will usually arise following a period of time in foster care or residential accommodation. They will often involve teenagers who are the victims of sexual exploitation or who engage in alcohol and/or drug misuse.

The deprivation of a child’s liberty is something which family practitioners have, perhaps unavoidably, become hardened to. The case of Re W (A Child) [2016] EWCA Civ 804 is a timely reminder of some of the fundamental legal principles in respect of secure accommodation orders but also raises a number of ideological points with which many may feel sympathy but which ultimately did not persuade the Court of Appeal.

In this case, the child was rapidly approaching majority. In fact, at the time of the appeal, she was 17 years and 11 months’ old. So in this case, not only was the Court grappling with the most draconian of orders, but a child who only marginally fell within the Court’s jurisdiction and whose wishes were clearly against any form of secure accommodation. She had been beyond parental control for several years but remained at home until the age of 15 until she was accommodated by the local authority.

One key point for the appellate court was which subsection of section 20 of the Children Act 1989 the child had been accommodated under. It was argued for the child that she was accommodated under section 20(5) which permitted a local authority to accommodate a child in a community home 'if they consider that to do so would safeguard or promote his welfare'. If this argument had succeeded, it would have precluded an application for a secure accommodation order pursuant to Regulation 5(2) of the Children (Secure Accommodation) Regulations 1991/150.

The Court of Appeal was not persuaded. It held that this was not a case where accommodation was provided merely to safeguard or promote the child’s welfare. It was a case where her welfare would be seriously prejudiced if she was not provided with accommodation. Her accommodation by the local authority therefore fell within section 20(3) which opened the door to an application for a secure accommodation order.

There are two criteria for the making of a secure accommodation. The first being that the child has a history of absconding, is likely to abscond from any other description of accommodation and, if they abscond, they are likely to suffer significant harm. In practice, this is very often used with children who do not stick to the rules of a residential placement, for example by breaking the curfew and returning late or many days later.

However, the Court of Appeal has reaffirmed the interpretation of the word 'abscond' in terms of escaping indefinitely from an imposed regime. The child disregarding the rules of the unit and absenting herself for limited periods did not satisfy the definition of absconding. Therefore, the first of the criteria was not available to the local authority.

This is likely to come as quite a surprise to many practitioners and courts alike. It will have a significant impact upon local authority applications in future as presently the majority are pursued on the basis of absconding behaviour.

However, the second criteria remained open and in this case was satisfied – if the child is kept in any other description of accommodation he is likely to injure himself or other persons. One can imagine that there might be some argument as to the correct interpretation of 'injure' in this context but with the definition of 'harm' being so wide, such arguments are unlikely to find any traction.

One of the most interesting arguments put forward on behalf of the child was to challenge the valid jurisdiction of a local authority to seek to do what those with parental responsibility cannot legitimately do – lock the young person in their bedroom. It was also said on behalf of the child that there was an inequity for a restricted class of young people, who have not been sentenced to detention after conviction for a criminal offence or in consequence of mental health issues, but for whom detention was a prospect.

This is all the more interesting because it arises for young people who are 'looked after' by the local authority but have not been made the subject of a care order after due process of law, and who cannot be made the subject of a care order by virtue of their age. It is a peculiarity of the Children Act.

The Court of Appeal did not give away their sensibilities on the ideological issues and instead re-stated that a local authority has a clear statutory authority to restrict the liberty of a child, subject to the sanction of the court. The imminence of the child’s 18th birthday does not prevent them from continuing to be recognised in law as a child, nor do their wishes and feelings, which invariably will be against any form of secure accommodation, prevent the Court from making such an order. 

The Court of Appeal also clarifies that, despite the mandatory wording of section 25(4), ie that if the criteria are satisfied, the court shall make an order, this is subject to necessity and proportionality. This will be fact specific and the courts will consider what other attempts have been made, or could be made, to safeguard the child before making a secure accommodation order.

Whilst the Court of Appeal was anxious to posit a secure accommodation order as protective rather than punitive, it cannot fail to be regarded as a punishment by the child in question. Whilst the argument for injunctive relief against the malign attentions of disreputable men did not succeed in this case, primarily because the Court could not provide such relief against unknown individuals, this should not deter practitioners from seeking such relief in cases where a child’s abuser(s) is known.

This case is therefore not only a useful reminder that absconding means absconding and not simply breaching the rules of a placement, but an encouragement to practitioners to think creatively about less draconian protective measures.

Co-written with Emma Kendall a barrister at St Phillips Chambers

Comment

Non molestation orders shouldn't last forever

Comment

Non molestation orders shouldn't last forever

 Further Practice Guidance from the President on Non Molestation Orders

 

Following discussions with the Association of District Judges, the editors of the Red Book and others, the President of the Family Division has revised his Guidance, which was originally issued in 2014. The Practice Guidance on the Duration of Ex Parte (Without Notice) Orders comes into effect today. It is essential reading for anyone who undertakes this work and who hears it.

Earlier this year figures from the Ministry of Justice confirmed that the number of non-molestation orders issued by the courts to protect people from harassment, intimidation or violence had increased by 21 per cent, from 4,925 to 6,101, between 2012 and 2014 in England and Wales.

This barely comes as a surprise, as following the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 on 1 April 2013 the scope of services funded as part of civil legal aid radically changed. Legal aid in private law disputes has all but ceased which we know to our cost, save for where there are issues concerning domestic violence or child abuse and specific evidence fulfilling the requirements of regulation 33 or 34 of the Procedure Regulations is provided in support of this. As a consequence non-molestationorders are also the entry point for a legal application in Children Act proceedings.

A non-molestation application is usually an ex parte (without notice) application to the court. It had become the practice, and to a great extent I think it still is, that at that hearing the court would make non molestation orders for a period of up to one yearor indeed unlimited periods and include a provision in the order for it to be “considered at a further hearing on a date to be fixed by the court officer on request by the respondent”. The onus being on the respondent, to bring the matter back to court if they took issue.

This Guidance was originally issued on 13 October 2014. This revised Guidance, supersedes the previous Guidance.

The President made the following points in his Practice Guidance:

“1 The Magistrates’ Association and the National Bench Chairs’ Forum have raised with me the question of whether it is proper to grant an ex parte non-molestation injunction for an unlimited period. They suggest that practice varies. They express the view that to grant such an order for an unlimited time is wrong in principle.

2 In expressing that view, the Magistrates’ Association and the National Bench Chairs’ Forum are entirely correct. To grant an ex parte (without notice) injunction for an unlimited time is wrong in principle. The practice of granting such orders for an unlimited time, if this is still occurring, must stop.

3 Subject only to paragraph 8, the same principles, as set out below, apply to all ex parte (without notice) injunctive orders made by the Family Court or by the Family Division, irrespective of the subject matter of the proceedings or the terms of the order.

4 The law is to be found in Horgan v Horgan [2002] EWCA Civ 1371, paras 5–6 (Ward LJ), R (Casey) v RestormelBorough Council [2007] EWHC 2554 (Admin), paras 37–41 (Munby J), In re C (A Child) (Family Proceedings: Practice)[2013] EWCA Civ 1412, [2014] 1 WLR 2182, [2014] 1 FLR 1239, para 15 (Ryder LJ) and Re A (A Child) [2016] EWCA Civ 572, [2016] 4 WLR 111, paras 49-61, esp paras 59-61 (Munby P).

5 The relevant principles, compliance with which is essential, are as follows:

(i)An ex parte (without notice) injunctive order must never be made without limit of time. There must be a fixed end date.It is not sufficient merely to specify a return day. The order must specify on its face and in clear terms precisely when it expires (eg, 12 noon on 20 March 2017).

(ii)The order must also fix a return day. The order must specify the date, time and place of the hearing on the return day. The return day should normally be no more than 14 days after the date when the order was made.How long the hearing on the return day should be listed for must be a matter for the discretion of the judge. However, having regard to paragraph 6,often a very short listing may well be appropriate.

(iii)Careful consideration needs to be given to the duration of any order made ex parte (without notice). Many orders will be of short duration, typically no more than 14 days. But in appropriate cases involving personal protection, such as non-molestation injunctions granted in accordance with Part IV of the Family Law Act 1996, the order itself can be for a longer period, such as 6 or even 12 months, provided that the order specifies a return day within no more than 14 days.This must be a matter for the discretion of the judge, but a period longer than 6 months is likely to be appropriate only where the allegation is of long term abuse or where some other good reason is shown. Conversely, a period shorter than 6 months may be appropriate in a case where there appears to be a one-off problem that may subside in weeks rather than months.

(iv)The order must make it clear that (a) it was made in the absence of the respondent and that the court has considered only the evidence of the applicant and (b) the court has made no finding of fact. Where the evidence is written, it must be identified in the order. Where, exceptionally, the court has received oral or other evidence (eg, a photograph) that evidence should be recorded on the face of the order or reduced to writing and served with the order.

(v)Where the order has been made in accordance with Part IV of the Family Law Act 1996 it must recite that the court has had regard to sections 45(1) and (2) of the Act.

(vi)The order (see FPR 18.10(3)) ‘must contain a statement of the right to make an application to set aside or vary the order under rule 18.11.’ The phrase ‘liberty to apply’is not sufficient for this purpose. The order must spell out that the respondent is entitled, without waiting for the return day, to apply to set aside or vary the order.

(vii)If the respondent does apply to set aside or vary the order the court must list the application as a matter of urgency, within a matter of days at most.

6Experience suggests that in certain types of case, for example, non-molestation or other orders granted in accordance with Part IV of the Family Law Act 1996, the respondent frequently neither applies to set aside or vary the order nor attends the hearing on the return day.

(i)When, in such cases, there is no attendance by the respondent and the order, having been served, does not require amendment there is no need for re-service. The order made on the return should however record that the respondent, although afforded the opportunity to be heard, has neither attended nor sought to be heard. 

(ii)If, however, variation of the original order is sought by the applicant (eg by extending the ambit or the duration of the order) then:

(a)Paragraphs 5(i),(iii)-(v) must be complied with in relation to the new order and the new order will need to be served.

(b) Unless, before the return day, the respondent was given proper notice of the proposed amendments, either in theapplication or in the initial order, (a) the new order must specify a new return day, and (b) paragraph5(ii)must be complied with in relation to the new order.

7  I remind all practitioners and judges of the principle, which applies to all ex parte (without notice) injunctive orders made by the Family Court or by the Family Division, irrespective of the subjectmatter of the proceedings or the terms of the order, that a without notice application will normally be appropriate only if:

(a) there is an emergency or other great urgency, so that it is impossible to give any notice, however short or informal, or

(b) there is a real risk that, if alerted to what is proposed, if 'tipped off', the respondent will take steps in advance of the hearing to thwart the court's order or otherwise to defeat the ends of justice.  In an appropriate case this can justify the grant of a non-molestation injunction without notice, lest the respondent, having been served with an application, further molests his (or her) victim or exerts pressure on her (him) to abandon the proceedings.

8  Nothing in this Guidance derogates from, or otherwise modifies, the principles and safeguards to be observed on an application for an ex parte (without notice) freezing or search order: see L v K (Freezing Orders: Principles and Safeguards) [2013] EWHC 1735 (Fam), [2014] Fam 35.”

This is a very welcome re-clarificaiton of the principles in his 2014 Practice Guidance. There still appears to be much confusion as to whether Practice Guidance need to be complied with or not. There is considerable case law, which supports that they do. For a helpful discussion on this issue see Re W (Minors)[2016] EWHC 2226.

It would appear that the principle reason for this latest Practice Guidance is as a result of wholesale misunderstanding or non-compliance of the 2014 Practice Guidance. It will be interesting to see whether both practitioners and the judiciary comply this with.

Jason M Hadden

Barrister at St Ives Chambers

Comment

The Red Book, the Judiciary and the issue with non-molestation orders

5 Comments

The Red Book, the Judiciary and the issue with non-molestation orders

For a family lawyer the Red Book is nothing less than a friend, a guide and indeed as is often the case when in court, asaviour. So it is of particular interest when a senior member of the judiciary, namely Mr Justice Mostyn takes issues with its content, particularly on the topic of non-molestation orders

Non-molestation orders from a legal perspective are big business. Earlier this year figures from the Ministry of Justice confirmed that the number of non-molestation orders issued by the courts to protect people from harassment, intimidation or violence had increased by 21 per cent, from 4,925 to 6,101, between 2012 and 2014 in England and Wales. This comes as no surprise, as following the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 on 1 April 2013 the scope of services funded as part of civil legal aid radically changed. Legal aid in private law disputes has all but ceased which we know to our cost, save for where there are issues concerning domestic violence or child abuse and specific evidence fulfilling the requirements of regulation 33 or 34 of the Procedure Regulations is provided in support of this. As a consequence non-molestationorders are also the entry point for a legal application in Children Act proceedings.

The background

A non-molestation application is usually an ex parte (without notice) application to the court. It had become the practice, and to a great extent I think it still is, that at that hearing the court would make non molestation orders for a period of up to one yearor indeed unlimited periods and include a provision in the order for it to be “considered at a further hearing on a date to be fixed by the court officer on request by the respondent”. The onus being on the respondent, to bring the matter back to court if they took issue.

This however flies in the face both of natural justice and the guidance given by the President on 13 October 2014, in Practice Guidance: Family Court – Duration of Ex Parte (Without Notice) Orders where he confirmed that the practice of granting such orders for an unlimited time must stop. He reiterated that the law is set out in Horgan v Horgan [2002] EWCA Civ 1371, paras 5-6 (Ward LJ),R (Casey) v Restormel Borough Council [2007] EWHC 2554(Admin),paras 37-41 (Munby J), in Re C (A Child) (Family Proceedings: Practice) [2013] EWCA Civ1412, [2014] 1 WLR 2182, [2014] 1 FLR 1239, para 15 (Ryder LJ), and JM v CZ [2014] EWHC 1125 (Fam), paras 5-13 (Mostyn J).

The relevant principles as set out by the President, “compliance with which is essential, are as follows:

 (5)(i) An ex parte (without notice) injunctive order must never be made without limit of time. There must be a fixed end date.

(ii) It is not sufficient merely to specify a return day. The order must specify on its face and in clear terms precisely when it expires (eg, 4.30pm on 19 November 2014).

(iii) The duration of the order should not normally exceed 14 days.

(iv) The order must also specify the date, time and place of the hearing on the return day. It is usually convenient for this date to coincide with the expiry date of the order (eg, list the return day for 10.30am on 19 November 2014 and specify that the order expires at 4.30pm on 19 November 2014).

(v) The order (see FPR 18.10(3)) "must contain a statement of the right to make an application to set aside or vary the order under rule 18.11." The phrase "liberty to apply on 24 hours' notice" is not sufficient for this purpose. The order must spell out that the respondent is entitled, without waiting for the return day, to apply on notice (the details of which and the need for which must be set out on the face of the order) to set aside or vary the order.

(vi) If the respondent does apply to set aside or vary the order the court must list the application as a matter or urgency, within a matter of days at most.”

The reality appears that courts and practitioners up and down the land are simply not following this clear and cogent Guidance. This thus bring us to Mostyn J, in Re W (Minors)[2016] EWHC 2226and the note which prefaces the Guidance in the 2016 edition of the Family Court Practice (“the Red Book”) and to which he describes at para 10 of his judgment as “intemperate, disrespectful and legally wrong” and that “in effect incites the lower judiciary to ignore the Guidance and continue with the bad practices that the Guidance was intended to eradicate”.

 

So what does it say in the Red Book?

The Editorial Note in the Red Book (page 2681) states that the President’s Guidance has been criticized as unworkable in practice, imposing increased work and expense on practitioners and staff at HMCTS and increased expense on public funds, while reducing protection for victims of domestic violence. That unusually, the Judicial College has declined to promote it and it is understood that a majority of DGJs are not supporting it. It goes on to state that whilst (5)(i),(ii),(v) and (vi) are clearly correct and consistent with the longstanding commentary in this work, the difficulty is with paras 5(iii) and (iv). The problem being that if you are only granting he order for 14 days you are going to clog up the courts still more than now; the expense on the applicant (and/or public purse) of further person service on the respondent and the potential risk of leaving the applicant without protection between hearings. The Note concludes that Guidance needs to be amended particularly as the Notes says “that there is nothing wrong in law with an ex parte order that lasts 6 or 12 months provided that in all cases a full hearing is held as quickly as possible to review the order.”

As we have seen above Mostyn J takes a rather different view as to the workability of the Practice Guidance, confirming that he considers

“it to be eminently workable in practice. More importantly, I believe that it fairly balances the necessary need for protection for victims of domestic violence with the fundamental right of a litigant to be heard in a case whichconcerns him. The editorial note implicitly asserts that the specification of the normal duration of an ex parte order as 14 days in para.5 (iii) of the Guidance is ultra vires.  It states that there is no statute or rule requiring it.  That is true but it should be understood that the specification, as well as the guidance generally, derives from authorities of the Court of Appeal and the High Court.  It is for the higher courts to give guidance as to the interpretation of statutes and it is certainly within the remit of the higher courts to specify how a discretionary power in a statute is normally to be exercised.  And when the higher courts give such guidance in a decision, then that is binding on the lower courts - see the decision of the Supreme Court in Willers v Joyce No. 2 [2016] 3 WLR 534 at para.5.  Of course the normal specification of 14 days can be departed from, perhaps by a fairly long period, if the facts of the case warrant such a departure; but where the higher courts have specified a normal starting point of 14 days then that is where the lower court should start.”

He reiterated that

“In my judgment, the lower courts must faithfully adhere to the guidance until and unless it is amended by the President.  No doubt representations can be made to him by the Association of Her Majesty's District Judges, but until the Guidance is altered it must be followed.”

So where does this leave us? The Practice Guidance must be followed unless and until it is amended. A non molestation order is a draconian order which often curtails the rights of a person at a hearing where they are not in attendance and as such should be for as short a period as possible and 14 days makes sense. But inreality this is not always practical. I agree with the Editorial Note.The court system is in a mess. Too many cases; litigants in person; insufficient resources and a system creaking at the seams. The protection of the victim from a risk of domestic violence must be added to the mix and on balance the current practice of longer orders makes sense.

As such the lower judiciary should rather, than simply completing a tick box form when making non-molestation orders shall have to consider giving short judgments explaining why this case deserves a longer order in the specific circumstances of this case. This then may appease both Mostyn J and the Author of the Editorial Note.

5 Comments

Does a McKenzie Friend have many real friends in the legal profession?

1 Comment

Does a McKenzie Friend have many real friends in the legal profession?

With government statistics confirming that in 34% of private law disputes neither party has the benefit of legal representation from either a barrister or a solicitor it is perhaps of no surprise that more litigants are relying on a McKenzie Friend.

The term McKenzie Friend derives from the case of McKenzie v McKenzie [1970] 3 WLR 472. It was a defended divorce case in which the husband sought to be assisted by his friend, a young Australian barrister who,whilst not qualified within the UK, was proposing to offer the husband support and some prompting on appropriate questions to ask the wife on a pro bono basis. The judge was less than impressed. The husband subsequently appealed. The Court of Appeal upheld the appeal confirming that every party had the right to have a friend present in court to provide a form of support.

As such a McKenzie friend is somebody who accompanies a litigant in person to a court hearing for the purpose of assisting him in such matters as taking notes, providing moral support, helping to organise the documents, and on occasions whispering advice to the litigant. He or she is not an advocate and has no formal right of audience. A McKenzie Friend, and here is the real rub, works under no compulsory code of practice, is unregulated, does not have professional indemnity insurance and is rarely legally qualified.

It is perhaps helpful to remind ourselves of the Practice Guidance: McKenzie Friends (Civil and Family Courts) issued in July 2010 by the Master of the Rolls and the President of the Family Division. It confirms that the role of a McKenzie Friend is notto :

i) act as the litigant’s agent in relation to the proceedings;

ii) manage litigant’s cases outside court, for example by signing court documents; or

iii) address the court, make oral submissions or examine witnesses.

Whilst the litigant ordinarily has the right to receive reasonable assistance from a McKenzie Friend, the court retains the power to grant or refuse such assistance after being satisfied that it is in the interest of justice and fairness that such assistance is required (or not as the case may be).

It is for the litigant to tell the court that they require such assistance and the proposed McKenzie Friend should produce a short CV or other statement setting out relevant experience (I should point out because I have seen it in a CV recently, that this does not need to reference a swimming certificate, as impressive as this may be) and confirming that they have no interest in the case, understand their role and the duty of confidentiality.

Where there is an objection to the presence or assistance of a McKenzie Friend it is for the court or the objecting party to provide sufficient reasons why the litigant should not receive such assistance. This would then engage the right to a fair trial. The litigant should be given a reasonable opportunity to argue their point and the McKenzie Friend should normally be able to assist and support the litigant in that argument. But it remains the case that it is for the litigant to make the argument.

The simple fact is that McKenzie Friends do not have a right of audience or a right to conduct litigation. It remains a criminal offence to exercise rights of audience or to conduct litigation unless properly qualified and authorised to so by an appropriate regulatory body, or the court grants such authority which would be purely on a case-by-case basis.

The Practice Guidance reminds us that courts should be slow to grant any application from a litigant for a right of audience or a right to conduct litigation to a McKenzie Friend. It is after all solicitors, barristers and legal executives who are properly trained, have obtainedprofessional qualifications, have professional indemnity insurance and have an overriding duty to the court.

Where the McKenzie Friend seeks a right of audience it is for the litigant, not the McKenzie Friend to persuade the court that in the interest of justice they should be granted rights of audience. The grant of a right of audience or indeed a right to conduct litigation will only be granted in exceptional circumstances, for all of the obvious reasons set out above. Interestingly you might think that if the litigant can successfully make such an argument he probably does not require the McKenzie Friend to speak on his behalf in any event. It is also worth remembering that rights of audience and the right to conduct litigation are separate rights, which would need to be applied for both individually and justified separately.

What has also caused much consternation over recent years has been the fact that many McKenzie Friends are also charging for their services. Litigants can enter into lawful agreements to pay fees for McKenzie Friends(despite the fact that the industry remains unregulated)for their assistance at court, this can include preparation, clerical duties, photocopying and indeed the provision of legal advice in connection with court proceedings. Such fees cannot, however, be claimed against the other party.

A party is, however, risk of meeting the MckenzieFriend’s costs where such costs have been incurred after the grantof a right of audience. In principle they are thena recoverable disbursement under CPR 48.6(2) and 48(6)(3)(ii).

With more and more McKenzie Friends appearing on behalf of the litigants it is vital that advocates and indeed the courts, are familiar with this Practice Guidance. This is particularly the case where the actions of McKenzie Friends are coming under increased scrutiny.

Last week a paid McKenzie Friend, David Bright, was jailed and sentenced to 12 months in prison for the perverting the course of justice in a family court case. Mr Bright submitted a psychological report during the proceedings, which had in fact been prepared by his colleague and partner Miss Mann, who falsely claimed tobe a clinical psychologist. This bogus report caused enormous distress. Not only did this cause one of the parents both financial difficulties but he also lost contact with his children as a result.

This type of behaviour is deeply concerning. It wouldhowever be completely unfair to label all McKenzie Friends with the same brush. Many offer invaluable time and assistance to litigants. The problem seems to be the issue of McKenzie Friends being able to charge a fee. This implies, in my view, that they are something whichthey are not. They are attending court to offer support and comfort. They remain non-professionals. They are not lawyers. Whilst they continue to be able to charge fees, I wonder whose friends they actually are.

 

1 Comment

Re B: A Fair Trial for Litigants in Person in the Family Court

2 Comments

Re B: A Fair Trial for Litigants in Person in the Family Court

Barely a week goes by without lawyers reflecting on the impact of the surge in the number of litigants in person (LIPs) on the court system. In October 2016 government statistics confirmed that in 34% of private law disputes neither party are represented by either solicitor or counsel; the highest rate since legal aid was removed from the majority of such cases. This week we have Mr Justice Peter Jackson’s judgment in Re B (Litigants in person: timely service of documents) [2016] EWHC 2365 (Fam) where counsel was criticised, and an adjournment allowed, for serving a position statement on a LIP on the day of the hearing.

The case concerned a mother who wrongly removed a teenager from a convention country to England in February 2016. Father launched Hague Convention proceedings which the mother defended on the basis that the child objected to the return. At a directions appointment in May 2016 where the father was represented by counsel and the mother appeared as a LIP without an interpreter, standard directions were given for the final hearing. No specific direction was given for timely service of documents on the mother.

On the morning of the hearing counsel for father provided the court with his position statement (14 pages) and four law reports (100 pages). He had also filed these the night before by email apologising for their lateness. Mother, who was again unrepresented, was provided with these documents at court for the first time. She was assisted in reading them (or attempting to read them) with a court appointed interpreter.

In a judgment, published with the approval of the President of the Family Division, Mr Justice Peter Jackson consequently admonished father’s counsel for the late service of such documents and concluded that

where one party is represented and the other is a LIP, the court should direct as a matter of course that the Practice Direction documents under PD27A are to be served on the LIP at least three days before the final hearing, especially where the LIP is not fluent in English. The method of service, usually email should be specified. Where time permits, the courts should consider directing that the key documents are served with a translation. In cases where late service on a LIP may cause genuine unfairness, the court should consider whether an adjournment of the hearing should be allowed until the position has been corrected.”

The reality is that LIPs frequently appear in child abduction cases where applicants are entitled to unconditional legal aid, while legal aid for respondents is means and merits based. Holman J considered the issue in PH v AH [2016] EWHC 1131 (Fam) where it thought it was

“grave, if not scandalous, that in applications under the Hague Convention non means tested publicly funded legal aid is automatically made available for applicants, but not for respondents. It is indeed difficult for respondents to obtain legal aid in relation to these cases, and increasingly they appear in person. I regard that as highly undesirable, and indeed a denial of the essential ingredient of a fair trial of equality of arms. But that is the position that has now been reached in this country…One simply cannot go on and on and on adjourning applications under the Hague Convention on the off chance that at some later date a respondent parent may obtain some form of legal aid or legal representation.

Whichever political party is running the government there seems little enthusiasm or indeed appetite to change the rules on legal aid.

So what does PD 27A say?

‘PD 27A is concerned with court bundles in the Family Division and the Family Court. It sets out the basic requirements, but importantly it makes clear at 2.1 that these are subject to specific directions in any particular case. Under paragraph 6:

  • The party preparing the bundle must provide a paginated index to all other parties not less than 4 working days before the hearing
  • Where counsel is instructed, s/he must have a paginated bundle not less than 3 working days before the hearing
  • The bundle (with the exception of the preliminary documents, known as Practice Direction documents) must be lodged with the court not less than 2 working days before the hearing
  • The PD documents must be lodged with the court no later than 11 am on the day before the hearing. The rule does not provide for service on the other parties, but the implication must be that the document will be sent to them no later than that.’

These rules have been around for a while now but there seems to be little compliance. Solicitors are already struggling with their workload and it remains rare (although it happened in this case) for counsel to get the papers more than a day before a hearing.

Mr Justice Peter Jackson confirmed that the position statement was “of real assistance to the court”. Position statements can give a hearing a very helpful steer both as to the practicalities of a case and the applicable law. However many advocates will now have to think twice about drafting a position statement if they are against a LIP where there could now be a risk of an adjournment and the reality of wasted costs for their client. Also, who would pick up the cost (not to mention the time constraint) of having such a document translated? It may work where one party has legal aid (although prior authority may still be required for the translation of such documents), but if one party is already struggling to pay for legal representation, adjournments and additional disbursements often become crippling.

I think this case has wider importance. It is not uncommon for authors of s.7 reports to file them on the morning of trial. Sometimes by design, for example to fit within a tight court deadline (“the s. 7 author to file and serve on the morning of the final hearing”). On occasions simply through lateness or some other such reason. If one party (or indeed both) are LIPs faced with a s.7 report on the day of trial then isn’t this inherently unfair? Particularly where Mr Justice Peter Jackson confirms that:

‘It might be added that late service of documents further weakens the position of LiPs by removing any opportunity they may have to seek advice and explanation ahead of the hearing from those who may be familiar with the system and the language.’

Timing will have to be carefully considered. Advocates and courts will have to be very conscious to ensure that compliance with PD27A becomes the norm rather than the exception. With the courts already creaking under the number of new cases and the time it takes for resolution, will we now be facing a fresh wave of adjournments to guarantee, as we must, a right to a fair trial?

To assist litigants in person in the family courts I have co-written a book on How to Represent Yourself in the Family Court

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Pre-nuptial love

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Pre-nuptial love

Lawyers should, as a rule, never be invited to weddings. Whilst the majority of the congregation look at the bride and groom through a romantic haze, offering blessings of joy and happiness; we lawyers look at the couple with the notion that one or both will be telephoning us within a month or maybe a year begging us to extricate them from the other.

Before you suggest I am some humbug or killjoy latest statistics show that 42% of marriages end in divorce. As a result it is becoming more common for the besotted couple to take advice from a lawyer prior to getting married to protect their assets (save of course for their hearts) should they ultimately get divorced

This brings us to the legal initiative of a ‘pre-nup’. A pre nuptial agreement is an agreement entered into between the couple in writing prior to getting married that sets out who gets what should the marriage end.  Even Brad and Angelina had a ‘pre-nup’ and who thought they would break up?

Whilst this may not be the most romantic of concepts (bearing in mind the promise to stay together through sickness and health and all that), it is practical. It aims to ensure that if a marriage ends, you are not taken to the cleaners.

For older couples, or where one wants to ring-fence savings or an inheritance, then this can be very appealing. The Law Society claims that it has seen an increase in inquiries from parents who want their children to sign pre-nups before marrying a partner, amid fears they will lose out on their investments in the event of a break-up.  There is of course, as ever, a legal conundrum. Pre-nups are not strictly legally enforceable.

On divorce the Court has very wide range of discretionary powers to distribute the family assets as it sees fit, in an attempt to bring about fairness between the couple. The Court regards roles of homemaker and economic provider as of equal value to the welfare of the family. As such financial assessment are considered on an individual basis and the court commonly start from the premise of whether an equal division of assets is appropriate.

Pre nups in the UK were given greater importance following the Supreme Court decision in Radmacher v Gratatino [2009] EWCA Civ 649. In this case both parties were foreign nationals who had signed a pre-nuptial agreement, which was perfectly valid under German law, but they divorced in the UK. The pre nup confirmed that neither party would seek maintenance from the other in the event of divorce. The parties lived together for the majority of their marriage in London and had two children. They separated in 2006 and divorce proceedings were subsequently issued. The husband applied to the court for a financial settlement and the High Court awarded him £5.6 million. The wife subsequently appealed on the broad basis that the judge had not given sufficient weight to the pre nuptial agreement. The Court of Appeal allowed the appeal and it was then the father’s turn to appeal to the Supreme Court. The Supreme Court dismissed his appeal, by a majority of eight to one, with Lady Hale (as she then was) dissenting (this happens sometimes). Giving the lead judgment Thorpe LJ confirmed at para.53

 

"in future cases broadly in line with the present case on the facts, the judge should give due weight to the marital property regime into which the parties freely entered. This is not to apply foreign law, nor is it to give effect to a contract foreign to English tradition. It is, in my judgment, a legitimate exercise of the very wide discretion that is conferred on the judges to achieve fairness between the parties to the ancillary relief proceedings. "

As such, this has left us with the principle which is to be applied is that a court should give effect to a pre nuptial agreement that is freely entered into by each party with a full appreciation of its implication unless, in the circumstances prevailing, it would not be fair to hold the parties to their agreement. Whilst a pre-nup cannot be allowed to prejudice the reasonable requirements of any children of the family, respect should be given to individual autonomy and to the reasonable desire to make for existing property.

So it is a very good idea to arrange a pre-nup, as the Court will take it into account when exercising its discretionary powers. The Law Commission proposes that pre-nups should be legally binding as it feels it will make it easier for couples to manage their finances after a split. It takes the view that couples should be able to have a grown up discussion about finance before entering a marriage or civil partnership. A further restriction, under the commission's proposals, is that agreements would only be enforceable "after both partner's financial needs, and any financial responsibilities towards children, have been met". The commission has called on the Family Justice Council, whose members include judges and lawyers, to produce "authoritative guidance on financial needs" to enable couples to reach an agreement that recognises their financial responsibilities to each other.

It is rather a good idea, even with these caveats, that where there is one partner with greater assets or expected inheritances (or maybe a history of romantic dalliances) that they should sit down with a barrister and have a pre nuptial agreement drawn up.

So should you be considering walking down the aisle, for that ultimate of romantic rendezvous, perhaps your best man (or woman) should be your barrister after all, standing side by side, for richer or poorer.

Jason M Hadden MBE is a barrister in family law at St Ives Chambers in Birmingham and can be contacted on 0121 236 0863

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Are more children about to give evidence in care proceedings?

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Are more children about to give evidence in care proceedings?

Each year about 40,000 children each year give evidence in criminal proceedings; often with special measures, but the fact remains that they still give evidence. In the family court social workers, guardians, parents and indeed their advocates generally start from the perspective that children should never give evidence in court. The Court of Appeal in Re E (A Child)[2016] EWCA Civ 473 heavily criticises this practice and concludes that such a presumption is contrary both to the binding decision of the Supreme Court in Re W (Children)(Family Proceedings: Evidence)[2010] UKSC 12 and Article 6 of the European Court on Human Rights.

This issue has recently come to the fore as a result of a fact-finding hearing in care proceedings before HHJ Watson (sitting as a Deputy High Court Judge) who made a number of findings of sexual abuse against a father and his teenage son (A). The judge determined that the abuse was perpetrated against A and three other children. What the judge did not do was hear evidence from any of the children. She declined an application for the children to give evidence during the fact-finding process and determined that the issue would be kept under review during the trial. The Court of Appeal allowed the appeal against the findings and criticised the "process and procedure together with the judge's overall analysis"

So how do we change this mindset?

Well the starting point as we all know is Re W and the relevant factors as set out by Baroness Hale. These should be considered with (from paragraph 9) the Working Party of the Family Justice Guidelines on the issue of Children Giving Evidence in Family Proceedings [2012] Fam Law 79.

The Guidelines themselves set out 21 factors to which the court should have regard when determining whether a child should give oral evidence in the determination of a fair trial. The Guidelines require the court to carry out a balancing exercise ‘between the following primary considerations:

i)the possible advantages that the child will bring to the determination of truth balanced against:

ii)the possible damage to the child’s welfare from giving evidence i.e. the risk of harm to the child from giving evidence’

It is very clear that the question of children giving evidence should be determined at the earliest stage and certainly not on the eve of trial. There will be have to be an evaluation of the available evidence and whether the child’s evidence would assist the court in determining the issues. This will obviously require a full consideration of the ABE evidence. This will mean obtaining it from the police as soon as possible and not simply relying on police summaries. There really should be a separate hearing on this issue, with skeleton arguments and for the advocates to have watched the ABEs (and indeed the judge) prior to this hearing. The funding for this work should make for an interesting discussion with the LAA.

Whilst it remains good practice for the court to obtain the analysis of the guardian on whether to call a child to give evidence, it is the court’s decision alone as to whether a child gives evidence. McFarlane LJ recognises in Re E that guardians often start from the premise that the child will suffer emotional harm should they give evidence. Is not this also the view of almost every social worker? The court must be alive to this argument and must thus balance this as just one factor to be weighed against the possible advantages of the child giving evidence in a determination to find the truth. Such emotional harm may be temporary as balanced against the prospect of a fair trial. What is certainly the case is that the emotional harm argument should not, as appears to be the case presently, represent the start and the finish of the argument.

The court will have to give a ‘full and sophisticated evaluation of the relevant factors and provide a judgment’. For many this will be a significant shift, but should certainly emphasis the need for this to be in the forefront of the court’s mind.

As a consequence the Court of Appeal note that, in accordance with recommendations from the President's working group on children and other vulnerable witnesses, the FPR 2010 will soon be amended to take account of the decision in Re W.

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Plain English: A Judge’s journey into the unknown

Legal commentators are rightly excited by the judgment of Mr. Justice Peter Jackson in Lancashire County Council v M [2016] EWFC 9 and others, due to its use of plain English. The judgment is clear, concise and very easy to read. These were care proceedings concerning four children, in which there was a concern that the father of the youngest two children might take them to Syria. The judgment has been kept as short as possible so that the mother and her older children could follow it.

What is perhaps so surprising is that this use of plain English is not more common. Particularly when the Plain English Campaign was set up almost 40 years ago with a campaign against gobbledygook, jargon and misleading public information. Certainly no place for legalese. Some might even suggest that a plain English campaign is completely at odds with everything that lawyers stand for. But when many of us now only communicate in 140 characters or less perhaps it is finally time for lawyers to recognise and even embrace this the new world.

This type of judgment is long overdue. I appreciate that there is a balance to be struck between setting out the legal test, the analysis and indeed the basis for the judgment; but in care cases there also needs to be recognition of the parties involved and their understanding. Decisions made in care proceedings are life changing; for both the adults and the children. I have often sat with clients who comprehend the odd word here and there, in dare I say, somewhat long winded judgments: listening patiently and desperately simply to know if their children are coming home or not. Where more and more litigants are facing court without the assistance of legal representatives it imperative that more tribunals keep it as simple as Mr. Justice Peter Jackson.

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A question of bias: from the children's guardian?

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A question of bias: from the children's guardian?

For a whole variety of reasons, it is not uncommon for parents in care cases to allege that the children’s guardian is biased against them. Over the years, I have had many parents tell me that the guardian has ‘taken against us’, ‘will not listen to us’ or simply ‘does not believe a word that we say’. More colourful language is not uncommon.

A similar argument recently came before Mr Justice MacDonald in QS v RS (No 2) (Application to Terminate Appointment of Guardian) [2016] EWHC 1443 (Fam).

Mother applied for the termination of the guardian on the basis of an allegation of bias. The matter related to the living arrangements of a child adopted in Nepal by British citizens. 

The mother’s complaint was that prior to receiving all of the evidence, a position statement had been filed on the guardian’s behalf expressing a view as to the child's best interests. The mother also made wider generalised assertions of unfairness.

The mother considered that the position statement appeared to favour the father's case. She therefore applied for the termination of the appointment of the children's guardian pursuant to FPR 16.25(1)(b). Mr Justice MacDonald dismissed her application, considering it to be misconceived.

He first reminded himself that where an allegation of apparent bias is made the test set out in Porter v McGill [2002] 2 AC 357 falls to be considered; namely "whether the fair-minded observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased". 

Thus the issue of apparent bias arose in the context of the conduct of a person occupying a judicial or quasi-judicial role. This however is not role of the guardian. The guardian does not make a determination, simply a recommendation. Whilst the guardian is under a statutory duty to advise the court, he or she is not the decision maker in the process - that responsibility lies with the tribunal.

The court further acknowledged that the right to a fair trial guaranteed by Art 6 is not confined to the 'purely judicial' part of the proceedings. Unfairness at any stage of the litigation process may involve a breach of Art 6 (Re L (Care: Assessment: Fair Trial) [2002] 2 FLR 730). However, where it is said that biased or unfair conduct on the part of a person under a duty to advise the court will lead to bias or unfairness in the proceedings, a causal link must be demonstrated.

In reality this will be extremely difficult to prove. You would have to show that this person would impose his or her influence on the tribunal.

The court reiterated the role of the guardian - they are not a “neutral” party nor do they have a “special” status within the proceedings. Whilst this is perhaps trite, there are many guardians and indeed tribunals who forget this but ultimately the court is the decision maker and must reach its decision by reference to the matters set out in the Children Act 1989 s 1 having regard to the totality of the evidence before the court.

In this case Mr Justice MacDonald held that there was no real likelihood that the approach of the guardian would lead to unfairness in the proceedings such that it required the termination of his appointment.

The court's discretion to terminate the appointment of a children's guardian was one that should be exercised sparingly; taking into account the need to deal with cases justly having regard to the welfare issues involved.

This decision should not come as a surprise but it perhaps reminds us of two points.

1.It is perhaps a case to have to hand, simply sometimes to remind tribunals of the observations of Macur LJ in MW v Hertfordshire County Council [2014] EWCA Civ 405 at [32] that the children's guardian is a witness subject to the same judicial scrutiny as any other witness and starts with no special advantage in proceedings as compared with other witnesses. Far too often tribunals appear to forget this and perhaps, dare I say, take their word as gospel.

2.And for advocates everywhere to remember the words of Ward LJ in Re J (Adoption Appointment of Guardian ad Litem) [1999] 2 FLR 86 where he re-iterated that frequently, a children's guardian holding a certain view can be persuaded under cross-examination to change their minds, that the "flexibility, rigidity, competence, balance, wisdom or other aspects of her conduct of the case are matters which the court will be invited to take into account when deciding whether to accept her evidence or recommendations". Whilst I am not sure I can agree with the word ‘frequently’, let me assure you that it can and does happen: sometimes.

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Back to basics - from A to J

The President of the Family Division has once again shown his frustration with those involved in public law work. Not for the first time this year the President (endorsed by the Court of Appeal in Re J (A Child) [2015] EWCA Civ 222) has stressed that pleadings need to be drafted properly, threshold matters and a failure to comply is simply unacceptable.

As set out in Re A (A Child) [2015] EWFC11, it is necessary for the Local Authority to link the facts it relies upon with the conclusion that the child has suffered, or is at risk of suffering, significant harm. This might not be obvious, for example in relation to emotional harm. A Local Authority might plead that a parent does not co-operate with professionals but why does this establish significant harm or the risk of significant harm?

The President reminds us that it is for the Local Authority to prove its case on the balance of probabilities. If its case is challenged on a factual point, it must adduce proper evidence. Hearsay evidence, though admissible, may not be sufficient to establish a fact against the firsthand, oral evidence of a parent.

The President makes a point of referring to hearsay evidence in social work chronologies and case recordings. Often through sheer repetition of hearsay evidence, the Local Authority and other professionals working with a family, accept it as fact. As the President stated:

“a local authority which is unwilling or unable to produce the witnesses who can speak of such matters first-hand, may find itself in great, or indeed insuperable, difficulties if a parent not merely puts the matter in issue but goes into the witness-box to deny it.”

It will be interesting to see how this develops where Threshold remains an issue at final hearing. It suggests that a significantly greater number of witnesses will need to be called than hitherto. 

An all too familiar plank of a Local Authority's case against a parent is their lack of insight or acceptance of a concern. The President makes the perhaps obvious point that if this ‘thing’ or concern is in issue, the Local Authority must both prove the ‘thing’ itself and also show why it has the importance attributed to it by the Local Authority.. 

The President offers strong guidance on how threshold and proposed findings of fact should be drafted. Findings that someone has “appeared” to do something or that another person have reported something are wrongly formulated. 

The President reminds social workers, children's guardians and family judges of the case law which establishes that society must be tolerant of diverse standards of parenting, that the courts are not in the business of social engineering and that we must have a degree of realism about prospective carers.  

The President stressed the words of HHJ Jack in North East Lincolnshire Council v G & L [2014] EWCC B77 (Fam)

 " The courts are not in the business of providing children with perfect homes. If we took into care and placed for adoption every child whose parents had had a domestic spat and every child whose parents on occasion had drunk too much then the care system would be overwhelmed and there would not be enough adoptive parents.  So we have to have a degree of realism about prospective carers who come before the courts."

The Court of Appeal in Re J (A Child) [2015] EWCA Civ 222, considered that the question of whether a young, immature couple was likely to cause significant harm to their baby required a far greater degree of analysis that it had received from the Local Authority or indeed the Judge. It stressed that even where Threshold was met, there needed to be a similarly thorough and clear analysis of the evidence to determine the welfare outcome. One does not simply follow the other.

 

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TOIL

Perhaps the three witches in William Shakespeare’s Macbeth had it right all along when they chanted their hymn of “double, double toil and trouble: fire burn and cauldron bubble”. Their reference of course had nothing to do with TOIL being an acronym for Time Off In Lieu – the latest weapon in the work – life balance for many employers.

But perhaps in hindsight  the witches had it right all along, as for many employees whilst the gift of TOIL has been conceded by their employers is it in the best interest of their career to claim or is that in fact just going to cause them a lot of trouble down the line.

TOIL is the latest concept in the current debate over the work-life balance. TOIL is already used within the civil service and across the public sector. However even big businesses such as BT plc see the benefit of a happy and stress free work force.

TOIL arises where an employee has worked their contractual hours and rather than receiving overtime for any additional work they can simply claim TOIL. They can tot up the extra hours which they work and use them when it is of more benefit to both them and the employer.  If you work an extra hour you get an extra hour at a more mutually convenient time. Hours can be added up at the end of the week or month and the accrued time taken as additional holiday. Travel can also be included within your TOIL timetable where the travel in is addition to your standard travel. It is most unusual for ordinary journeys to and from work to be included, but if you are working away from the office or taking extra time in meeting clients then this additional time can be included. As too can any additional time you spend working at home writing reports or even checking e-mails. TOIL is not a statutory benefit given as of right, but something to negotiate with your employer either at the start of a contract or at the most appropriate time.

So TOIL seems great. An excellent way for employees to receive proper recompense for putting in those extra hours. If the employer can not afford to pay overtime then the employee can earn a few extra holiday days. Or put more simply get back the time they put into the employer’s business. But the dilemma is do you actually take your TOIL time or do you just knuckle down and give the time freely to your employer in the hope that you get noticed for the right reasons and are rewarded not with extra days of holiday but with a cash bonus and promotion.  If you do take your TOIL and the rest of the team does not avail themselves of taking their time off are you really seen as a team player or the sort of person that the company is looking for? When it comes to promotion is the employer going to give the post to the person who works the overtime freely or the one who meticulously marks up the extra time and claims it as TOIL?

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The Letter

Anthony Andrews and Jenny Seagrove - onstage in 'The Letter'

Six thunderous bullets are all it takes to kill a man in Alan Strachan’s haunting West End revival of the Somerset Maugham classic legalistic thriller the Letter. This is not so much a classic whodunit, but more a ‘Why did she do it’ and ‘What price love?’

Set in 1920s Malay, Jenny Seagrove (of counsel Jo Mills in Judge Deed fame) plays the embittered cool calculating Leslie Crosbie who opens the piece firing the fateful bullets. But was it self defence in the face of a possible rape or revenge on an ill suited lover? It all looks rather clear cut until an incriminating letter provides evidence that Crosbie’s tale is more fiction than fact.  Seagrove takes to the piece with pure theatrical brilliance. Not perhaps allowing us to like her character, but rather as the play advances for us to understand her, even to the event that we know people like her – those trapped in a loveless marriage for the sake – well of anything else.

The undoubted stars of the play are the lawyers. Well why not indeed? Anthony Andrews as Crosbie’s defence lawyer gives a timing to the performance rarely seen recently in the West End. Every mannerism is wistfully measured in this delightfully balanced and underplayed performance. His moral struggle is one prevailing today for many lawyers, namely how far am I prepared to go for my client? After all “the law’s the law!” But then again, law at what price when friendship and duty are in issue. 

As with every great hero Andrews has his foil in his able and ever thoughtful Chinese legal assistant played by Jason Chan, who proves to have both the cunning and delivery equal to that of his English counterpart. Their interplays are the real gems of the production – beautiful nuances, telling looks and an obsequiousness, which pervades devilish motives.  
 

Paul Earnsworth’s sets feature a number of scenes all exquisitely designed, with an attention to detail that truly make you feel as if a window had been opened on the stage to 1920’s Malay.  From the veranda of the bungalow on a rubber plantation to an opium den, the smattering of lines in the local language throughout the piece only served to convince and the interplays between the white immigrants and the local “boys” were beautifully scripted. Changes in the scenes were artfully dealt with as part and parcel of the servant’s duties.

In parts the performances are almost am dram in style, but rather than present this as a  criticism, it actually gives a certain charm and ambiance to the piece. This is a delightful period drama in which law takes centre place. How far can and should a  lawyer go in defending  his client?

Wyndham's Theatre, Charing Cross Road London until August 11, 2007

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I’ll Ask the Questions: Sunny Jacobs

In this series of interviews I have had the good fortune to meet a number of people who have had a real passion and understanding of the law. Some have wanted to uphold it and some to amend it. During the last month I have however met a lady, who had no interest in the law at all. She kind of “fell into the system” so to speak. At 26 years of age she had the American dream; a husband Jesse Tafero who was her “soul mate” and two “wonderful children”. Then one evening she met Walter Rhodes and experienced the American nightmare. She was ultimately to spend seventeen years on death row. This is the story of Sunny Jacobs in her own words.

On the evening of 20th February 1976, Sunny Jacobs through the failing of her motor vehicle “it was the kind of car that just spewed black smoke” was forced with her family to take a lift with one of Jesse’s friends ex-con Walter Rhodes.

The journey through Florida was tiring and eventually it was agreed that they take a rest and a few hours sleep. They pulled over into a rest area. A state trooper Phillip Black and a visiting Canadian Constable Donald Irwin were undertaking a routine inspection of the vehicles in the rest area.

“Well there was nothing going on, there was no crime, we had just pulled over to a rest area which is part of the highway and we were resting. There was no reason for anything happening”

But something did happen. A gun was spotted between Rhodes’ legs. Black radioed in details of the gun to the police station to discover that Rhodes not only had a criminal record, but was on parole. “that changed everything because having a gun is a violation of your parole and he was immediately going to be taken back to prison, that was it. And that created a different situation.” 

As Rhodes had no intention of going back to prison, he pulled out a second gun and fired.

“I covered the children [in the car]. And then when the shooting stopped I looked up to see where Jessie was…… to see if he was ok. And he was standing there in the middle of the cars. And Walter Rhodes was running between…., around the cars with a gun in his hand saying that we were to take the police car and to hurry”.

Black and Irwin were dead. Rhodes had shot and killed both of them.

“Walter Rhodes then ordered us in to the police car. At that point we were kidnapped. Because we did not have a choice. Jessie said that if we did not listen to him he might kill us as witnesses so we had to go with him”

Rhodes bundled his captives in the police car and within moments was driving at speed in an attempt to evade the chasing police helicopters and cars. In the melee that followed Rhodes was shot and injured and Sunny, Jessie and their family were released from his custody into the polices’.

“Oh I thought we were being rescued.  When the police came I thought that that was our salvation, but then as they did not really know what was going on they just arrested everybody. And that was the beginning of the ordeal.”

Whilst Sunny and Jessie were explaining that they were merely in the wrong place at the wrong time and that they were little more than innocent bystanders Rhodes was painting a somewhat different story from his hospital bed. “He’d been in prison before, he knew how the system worked. And so he was claiming that he didn’t do it – we did.”

Rhodes entered a plea bargain on the basis that he had not been involved in the crime and that more than that Sunny had shot the officer twice before Jessie had taken the gun from her, shot the officer for the third time and then killed Irwin. Evidence was hidden by the Prosecution which would have proven that neither Sunny nor Jessie had fired the gun. In Sunny’s case the Prosecution also presented the testimony of a jailhouse informant Brenda Islam:

“They brought in a girl who had been in jail for drug charges, she was afraid, they got her to testify, that I had spoken to her in jail, because they needed something more against me. She later went on national television. She told what happened to her. She told how if they wouldn’t tell the truth, then I have to and I hope that Miss Jacobs will accept my apologies.”

Over twenty years later I asked Sunny for her thoughts on Brenda Islam.

“I feel that she was very heroic. She was desperately afraid even then”

When you say that she was heroic?

“To come forward and say that she had done something like that. Now everybody knows, her neighbours didn’t know about her past and yet she needed to right the wrong and so she put herself out like that and shamed herself in order to make things right. I think that that was quite heroic.”

But I digress. With tainted evidence, a plea bargain the details of which did not come before the Jury both Sunny and Jessie were charged with the murders.

“I really thought that as soon as they took us to court they would figure out that I did not do it and I would be let go. Anybody who knew me for five minutes would know that I would not kill anybody…I was one of those peace and love people. I was a hippy and a vegetarian, how could you possibly think that I could kill someone”.

Both were found guilty. Both were sentenced to the death penalty. The Jury in Sunny’s case recommended a life sentence. But Judge Daniel Futch Jr, himself a former Florida Highway Patrol trooper, who coincidentally just happened to keep a miniature replica of an electric chair on his desk, imposed the death penalty.

To extenuate matters, as if that is possible under the circumstances Sunny was then imprisoned in solitary confinement for the next five years.

“Yes because I was the only woman in the United States at that time who had a sentence of death. That was what they did. They did not feel that they could put me with the men or with the population of women and they thought that people with death sentences have nothing to lose so I would be a threat to the population so I was housed in isolation. Really what amounted to solitary confinement for five years.”

So you spoke to no one?

“Basically not. I was the only one who lived in that building. So the only sound I heard was the sound that I made. It was more like a tomb than a cell, really. I finally got a court order to allow me four hours of interaction with my peers each week to give me..,”

Four hours a week?

“Yes, basically the equivalent of what the men had and as there were a number of men on death row at the time they had each other and I did not have anyone so I had four hours a week and the occasional visit.”

But Sunny refused to wait idly by for her appointment with the executioner. Appeals were lodged and numerous lawyers appeared on her behalf. But you have to ask how she coped with it all.

“I was very angry. And I had lost faith in everything that I had been taught to believe in, including God”

It was clearly a horrendous experience, one with which many people would simply not cope.

“At one point I just made a decision. If I didn’t do something, then they may as well have killed me. I would be dead. Because I was losing my sense of identity and I was made to believe that I was just a whole lump of flesh, who could be locked up in a cage, no name, I had a number and that this was all that there was to it. And I was to just wait in this cell until they decided, that they were going to kill me. First of all, I decided it was not for them to say when I died, for there was a higher authority in the universe and until it was such time for me to die, then my life was still my own and did not belong to them. They could just restrict my movements”

After five years on death row Sunny was released into the general prison population and did not as it happens stop talking for the next three days, until rather ironically she lost her voice. The following year she lost her parents.

“My parents decided that maybe they could go on a vacation for once and not have to come to prison. So they dropped my daughter off with Jessie’s parents and went off for a holiday and unfortunately on the way the plane crashed and they were killed. And that was…that was the most difficult day of my life.”

And what of Jessie?

On the 4th May 1990, after fifteen years of incarceration Jessie Tefaro was executed by the electric chair. It was to be the last time that they used the electric chair in Florida, before rather reassuringly switching to lethal injection.

“It took thirteen and a half minutes for Jesse to die. Three jolts of electricity that lasted fifty five seconds each. Almost a minute. Each. Until finally flames shot out from his head, and smoke came from his ears”

Jessie did not have the benefit of the same legal team which finally assisted in having Sunny exonerated.

“Jessie had a prior record. When somebody has a prior record they are considered no good anyway. You are criminal. So if you did not do this then you will be doing something else. As such the system is comfortable in putting him away. Jessie’s trial lasted four days and then he was convicted and sentenced to death by his jury. My trial took two weeks because I did not have that kind of a record and I was a mother and it took longer.”

Perhaps rather unsurprisingly she continues to have fears and concerns about the debate over capital punishment and the criminal legal system in America.

“That is why they call it capital punishment. If you do not have the capital then you took the punishment. That is the way it is. No rich ends up in death row. The prosecutor’s office selects the cases that will be death cases. They select them. So they select the ones that they are going to win. They select the cases where the person has limited means to defend themselves, maybe they are uneducated, if this piece of evidence is not presented then well.”

And Sunny is in a unique position to evaluate this disease.

“In every one of the cases that I know about, that I have spoken to, between 30 and 40 of the exonerated in America and there are over 115 of them now. In every case there are prosecutorial misconduct; hiding of evidence which could have in the first instance shown their innocence; admission of false evidence; there is the plea bargain; and the jailhouse informant. Those are the elements that are always there. Always. I even met a man from Ireland who was an exonerated and we talked about the cases. And the same method. The face of injustice is the same everywhere.”

In October 1992, Sunny Jacobs was finally released from prison on the basis that she entered a plea in which she did not admit guilt.

“The police escorted me to the door with my little box of belongs. That was all I had after 17 years. And opened the door and handed me my box and told me to have a nice life”

In many ways Sunny seems incredibly reconciled with the hand that fate has dealt her. Hers in not a story of anger, bitterness or even hatred. Hers is one of optimism, of love and of her future, whatever it brings. She has a new husband (himself a former exoneree of the Irish legal system) a loving family and dogs to walk.

“The prize for me is that I have a beautiful life now. That is the prize; otherwise I might be a bitter woman blaming somebody else.”

Sunny’s story is presently being shown, with others in the Exonerated until the 11th June 2006 at the Riverside studios in Hammersmith and tickets can be obtained via the box office on 020 8237 1111 and via the website www.riversidestudios.co.uk.

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Spamalot

Monty Python’s Spamalot is unlike any other theatrical production I have seen this year. It is loud, raucous, immensely funny and to paraphrase a phrase from the strapline “a new musical lovingly ripped off from the motion picture”. It is an absolutely delightful production with standing ovations guaranteed every night. Eric Idle and the composer John Du Prez have brought a hilarious musical to the West End having stolen every funny line, joke and absurdity from the original Monty Python. The songs are both catchy and downright stupid. From a practical point of view there is some merit in watching Monty Python and the Holy Grail so as to ensure that you are up to speed with the humour that said most of the audience when I saw the production knew the script almost as well as the actors. For those who have not seen the film, the premise is King Arthur’s search for the Holy Grail; with a touch of romance; the French and always looking on the bright side. The must see musical of 2006. JMH

Spamalot is at the Palace Theatre Cambridge Circus London. Box Office:  0870 8900142.                                 

Website:  www.montypythonsspamalot.com

 

 

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Skin and Blister

Skin and Blister is the third instalment in solicitor Victoria Blake’s detective thrillers based around Private Investigator Sam Falconer. In this, when a student is found dead in his rooms at St Barnabas College, Oxford, it looks like nothing more than an unfortunate suicide. A week later, when Sam's brother disappears, she finally begins to put two and two together and recognises the disturbing connection between the events. Then her mother receives a Catholic mass card, announcing that a funeral mass is to be said for her son. Sam embarks on a race against time from Oxford to Iraq and back to the troubles in Ireland, in an attempt to save her brother. A course not aided by the revelation that her father a former SAS officer had killed forty republicans in the province and someone is out for retribution.

Whilst the story is entertaining and enjoyable, it is unfortunately somewhat predictable. The plot will not strain your intellect too much over festive period. The characters are rather one dimensional and predictable. As such you fail to find that much affinity with the leading character; but that said its easy going and quite engaging.

Skin and Blister by Victoria Blake Orion - Price £18.99 -  ISBN: 0752874594

 

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Rumpole and the Reign of Terror - By John Mortimer

Rumpole and the Reign of Terror

Rumpole of the Bailey is as a much an English institution as tea and scones, warm beer and discussions about the weather. Over thirty years the author John Mortimer has attempted to keep Rumpole’s short stories as up-to-date and as relevant as possible. As such over the years he has struggled with official secrets; feminist politics, the internet and the countryside alliance. Keeping to such an agenda in Reign of Terror, Rumpole challenges the new anti-terrorism laws, political corruption and racism. In many ways the story is traditional Rumpole; not only does he defend another member of the infamous Timson family, but he gets to defend a Pakistani born doctor Mahmoud Khan who has been arrested on suspicion of terrorism. Not only is Mahmoud imprisoned but the authorities rather unhelpfully refuse to disclose the reasons why, making it rather difficult to say the least, for a defence to be advanced. This also brings Rumpole face to face with a Home Secretary who has allowed power to change his priorities in life.

Shocked by the apparent infringement on human rights Rumpole takes on the case, the law and the government.

In a rather novel departure from his normal formula for these books, Mortimer allows Hilda, she of “she who must be obeyed” fame to share a large amount of the limelight with her husband. As such we see the first extracts of the memoirs of Hilda Rumpole who it would seem is on the verge of an affair with one of Rumpole’s arch-enemies and frequent sparring partner his Honour Judge Bullingham (the Old Bull).

I have been an enormous fan of the light comedy attached to the Rumpole series of books, and it is with a tinge of sadness that I must criticise the novel. It is clear that Mortimer is not only disappointed with New Labour, but disgusted with some of its recent policy decisions on how best to deal with terrorism whilst maintaining a natural balance with the rights of the individual. It may well be that Mortimer has a point, from a defence barrister’s perspective recent legislation does appear to alter the basic principle that a person is innocent until proven guilty, especially where “terrorists” are involved. However, reading this novel you get the feeling that Mortimer has rather over-egged the pudding. The novel for the first time in the series appears more Mortimer than Rumpole and in that way is rather over-indulgent. Far too much anti-New Labour language and if you excuse the pun somewhat laboured in its telling.

Whilst this is not perhaps Rumpole at his best, it is a fun, easy to read yarn; to be read over a glass or two of Pommeroy’s Chateau Thames Embankment of course.  

 Rumpole and the Reign of Terror is published by Viking for the price of £18.99

ISBN 0-670-91621-8

 

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A legal conundrum in a dog eat dog world

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A legal conundrum in a dog eat dog world

About a week or so ago an old friend of mine called my out of the blue in a flood of tears. She was panic stricken at the break up of her relationship. He had after all been the ‘one’, but during the course of our conversation it transpired that alas she was simply one of many. But her angst was not directed at her wayward boyfriend, but at the potential loss of her true love, a pedigree West Highland Terrier called Lollo. The dog had been bought to cement their relationship but that was over two years ago and now with the break up, the ownership of the dog was proving amongst others a bone of contention. And hence the call to her favourite lawyer. 

But my friend has not been alone in her trauma. It has been rumoured that Les Dennis and his ex wife Amanda Holden split their Westies so that they could have one each when they relationship ended. With one in three marriages ending in divorce, not to mention the number of couples who buy pets without walking up the aisle the question of pet litigation is becoming more and more pertinent.

 So what does happen to the pet when couples split up? In the eyes of the law pets are simply referred to as chattels. A chattel is an old legal word which basically refers to an item of personal property. As such in a legal context a pet is to be compared with nothing more than a lamp, a couch or even an old chair. And to think some say the law is an ass. Gosh now why would they say that?

So the relationship goes horribly wrong (with your partner not your pet) and after the DVDs have been divided into two piles the only thing remaining is the dog or cat (or snake for that matter) soulfully staring at the two of you. So how do you cut the pet in half?  

Well if agreement can not be reached as to the question of ownership of the pet or even visitation rights then recourse would need to be made to the courts to determine the question of residence. Not an ideal situation by any extent of the imagination.

On the other side of the Atlantic pet litigation is becoming big business. In August last year a Canadian court ordered that Keith Duncan, a truck driver in Edmonton pay maintenance to his ex wife in the sum of $200 per month to look after not the children, but the pet St. Bernard. As you can perhaps guess in America pet litigation is big business. Courts have been ruling on custody, maintenance and access with ex partners spending thousands of dollars on ownership of their favourite pet. We have had ambulance chasers so perhaps the next natural progression is kennel chasers.  

But in Britain things do not work quite like this. Well not yet any way. 

An action would in all likelihood need to be brought in the small claims division of your local county court for a declaration seeking ownership of the pet. This basically means that the value of the pet is less than £5,000 and the issue is one which can hopefully be decided without the need for either party to be represented by lawyers. The purpose of the small claims court is basically to avoid expensive and often unnecessary costs in the pursuit of justice.

A claim form would be issued against your former partner (and a fee paid) and after they have filed a defence the case would come before a District Judge who would hear the evidence and make a decision as to who gets the pet.

It would be necessary to ask the Judge to determine the question of ownership of the pet and perhaps also the return of the pet from your ex-partner. In making their decision the Judge will be interested in who originally purchased the pet; was the pet a gift; who undertook the main responsibility for the pet and any documents in existence about the pet such as in whose name any insurance policy is in or any Kennel Club registration. The simple reality is that the Judge would determine each case on its individual facts and merits.

The Judge unlike in cases regarding children does not have the authority without the consent of the parties to agree to access or visitation rights. There is a substantial risk however that the Judge could potentially order that the pet be sold and the proceeds of sale be split between the parties. That however is clearly not what either party would be looking for.  

As difficult as it might seem there may be merit in a meeting with your ex-partner under the auspice of something lawyers call mediation, where you could both sit around a table and try and find a solution. If that is too difficult a trained mediator could try and work with both of you to sort out the question of ownership or some form of shared access. 

So what is the answer? As unsavoury as it may sound the real answer may well be to enter into a form of pre-nuptial agreement with your partner when you invest in a pet. A formal document setting out perhaps who paid for the pet and who actually owns it. The alternative could be you stay together for the sake of the pet, well after all many people would do the same for a child. To paraphrase another slogan ‘a pet is not just for the relationship, it is for life.’

 

 

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