Children In Law
39.7K views | +0 today
Follow
Children In Law
legal issues about children in the uk
Your new post is loading...
Your new post is loading...
Scoop.it!

Lancashire County Council v A, B and Z (A Child : Fact Finding Hearing: Police Disclosure) [2018] EWHC 1819 (Fam) (02 July 2018)

Lancashire County Council v A, B and Z (A Child : Fact Finding Hearing: Police Disclosure) [2018] EWHC 1819 (Fam) (02 July 2018) | Children In Law | Scoop.it
more...
No comment yet.
Scoop.it!

Family Law Week: Court of Appeal determines issue of effective service of proceedings under Brussels IIa

Family Law Week: Court of Appeal determines issue of effective service of proceedings under Brussels IIa | Children In Law | Scoop.it
Home > News Court of Appeal determines issue of effective service of proceedings under Brussels IIa Court invites Rule Committee to consider inclusion of additional obligations in FPR In Thum v Thum [2018] EWCA Civ 624 the Court of Appeal has held that no time-limit for service can be read into r7.8 of the Family Procedure Rules 2010, rejecting the husband's argument that service of a divorce petition should be effected "as soon as possible" or "as soon as practicable". The wife had issued her divorce petition in England on 26 October 2015, while the husband had issued his petition in Germany on 20 January 2016. However, the husband was not served with the English petition until 27 February 2016, ie just over four months after the date of issue. Whether the wife had taken all necessary steps for effective service would determine whether the English or German Court was first seised for the purposes of Article 19 of BIIa. At first instance, Mostyn J had dismissed the husband's application for a stay or dismissal of the wife's petition on the basis that the English court was second seised. The husband appealed, arguing that Mostyn J's interpretation of the effect of the provision in Article 16(1)(a) was wrong, and that Mostyn J was wrong to conclude that the wife had not failed to take the steps necessary to have service effected. The husband relied on the wife's delay in effecting service and argued that service had been ineffective by virtue of the husband initially being served at his business address in Germany, rather than his home address. The husband sought that a time limit be implied into FPR r7.8, namely that service be effected "as soon as possible" or "as soon as practicable". The wife submissions in reply were that she had not failed to take any required steps. FPR r7.8 specifies no time by which service must be effected and the question of what steps are required under the Article 16(1)(a) proviso is to be determined by domestic law. The issue of whether any additional obligations, as to time limits, should be imposed was, she argued, a matter for the Family Procedure Rule Committee, not the Court. The Court of Appeal agreed with the wife's submissions and ultimately dismissed the husband's appeal. The Court of Appeal was persuaded that the wife had not failed to take any required step for effective service, nor could a time-limit for service be read into FPR r7.8. Moylan LJ giving the lead judgment commented at paragraph [60] that: "Service is a critical part in the conduct of proceedings and parties need to know easily and clearly what they must do in order to comply with the rules as to service.  It might be sensible or even appropriate for some additional specific obligation to be included but I can see no principled basis on which such can be implied.  What period would be selected and why would that period be appropriate?  In this context, what would "as soon as possible" or "as soon as practicable" mean?"   However, the Court of Appeal judges were agreed that the outcome of the appeal was "not entirely satisfactory" and acknowledged that it could be "undesirable for a party to seise the court without the respondent being served reasonably promptly" [paragraph 77]. As such, the Court invited the Rule Committee to consider whether any additional obligations as to service should be included in the FPR 2010. For the judgment, prefaced by a summary by Patrick Paisley of 1 Garden Court Family Law Chambers (from which this item is derived), click here. 15/7/18   Keywords:Brussels IIadivorce petitionjurisdictionService
more...
No comment yet.
Scoop.it!

Family Law Week: Government to proceed with new child maintenance compliance and arrears strategy

Family Law Week: Government to proceed with new child maintenance compliance and arrears strategy | Children In Law | Scoop.it
Home > News Government to proceed with new child maintenance compliance and arrears strategy General approval from respondents for proposals in consultation document The Department for Work and Pensions has announced that it will proceed with a new compliance and arrears strategy proposed in its recent consultation document. It is intended implement any necessary changes to secondary legislation this autumn. The DWP says that it has received broad endorsement for the key principles which will underpin the new strategy, which will:  Continue to prioritise collecting money for today's children.  Continue to encourage collaboration between parents.  Build on the success of CMS by introducing tougher new enforcement measures and making the best use of current powers.  Address historic arrears built up under the CSA schemes by offering a final chance at collection where this is possible at a reasonable cost to the taxpayer.  Avoid taxpayers funding activity that won't result in money going to children. The overall response to the proposals for improving the calculation of child maintenance liabilities was positive. There was a call for steps to be taken to include unearned income automatically when initially calculating a liability, as with historic income. As this would not be achievable without changes to primary legislation, the DWP has begun to explore with Her Majesty's Revenue and Customs ways to speed up the current process for sharing the relevant unearned income data they hold. Respondents offered a range of views on the proposed new power to allow the CMS to derive a notional income from an asset for the purpose of varying a calculation. There was no clear consensus on the applicable percentage rate to derive a notional income or the minimum value of assets this should be applied to. The DWP has therefore opted to proceed with the 8% rate proposed in line with the Judgment Debts (rate of interest) Order 1993 and will set the minimum aggregate value of assets at £31,250. This, the DWP says, allows it to align its overall approach with how it handles unearned income, and best balances the interests of all parties. There will also be legal safeguards to ensure this new power only targets appropriate assets. Respondents were generally in favour of the proposal to extend the government's ability to make deductions from benefits to include Universal Credit (UC) for those with earnings who are liable to pay flat rate maintenance. It is intended to introduce new regulations to allow it to make these deductions at the rate of £8.40 a week, aligning the treatment of these clients with others in a similar situation. Deductions from benefit will be extended so that arrears can be collected when on-going maintenance ends. The DWP had already announced an intention to introduce new powers to make deductions from jointly held accounts, and this consultation sought views on a proposal to extend this to jointly held and unlimited liability partnership business accounts. The proposals will be amended to reflect concerns that there needed to be safeguards to prevent third party funds from being subject to deduction. This means that as well as the proposed representation periods of 28 days for Lump Sum Deduction Orders (LSDOs) and 14 days for Regular Deduction Orders (RDOs) the last six months' bank statements will be checked to establish ownership of funds before progressing the order. Where this is not possible there will be an rebuttable assumption that 50% of the funds in the account belongs to the paying parent. The proposal to introduce a new power to confiscate passports from those who repeatedly refuse to meet their child maintenance obligations was well received. Regulations will provide that the ban can be revoked or reduced where full and part payment of the arrears covered by the disqualification order is made. For the original consultation document, click here. For the government's response, click here. 14/7/18 Keywords:arrearschild maintenanceenforcement
more...
No comment yet.
Scoop.it!

Working Together to Safeguard Children A guide to inter-agency working to safeguard and promote the welfare of children: July 2018 | BASW

Nothing is more important than children’s welfare. Children who need help and protection deserve high quality and effective support as soon as a need is identified. We want a system that responds to the needs and interests of children and families and not the other way around. In such a system, practitioners will be clear about what is required of them individually, and how they need to work together in partnership with others. Whilst it is parents and carers who have primary care for their children, local authorities, working with partner organisations and agencies, have specific duties to safeguard and promote the welfare of all children in their area. The Children Acts of 1989 and 2004 set out specific duties: section 17 of the Children Act 1989 puts a duty on the local authority to provide services to children in need in their area, regardless of where they are found; section 47 of the same Act requires local authorities to undertake enquiries if they believe a child has suffered or is likely to suffer significant harm. The Director of Children’s Services and Lead Member for Children’s Services in local authorities are the key points of professional and political accountability, with responsibility for the effective delivery of these functions. These duties placed on the local authority can only be discharged with the full co-operation of other partners, many of whom have individual duties when carrying out their functions under section 11 of the Children Act 2004 (see chapter 2). Under section 10 of the same Act, the local authority is under a duty to make arrangements to promote co-operation between itself and organisations and agencies to improve the wellbeing of local children (see chapter 1). This co-operation should exist and be effective at all levels of an organisation, from strategic level through to operational delivery. The Children Act 2004, as amended by the Children and Social Work Act 2017, strengthens this already important relationship by placing new duties on key agencies in a local area. Specifically the police, clinical commissioning groups and the local authority are under a duty to make arrangements to work together, and with other partners locally, to safeguard and promote the welfare of all children in their area. Everyone who comes into contact with children and families has a role to play. Safeguarding and promoting the welfare of children is defined for the purposes of this guidance as: • protecting children from maltreatment • preventing impairment of children's health or development • ensuring that children grow up in circumstances consistent with the provision of safe and effective care • taking action to enable all children to have the best outcomes About this guidance 1. This guidance covers: • the legislative requirements placed on individual services • a framework for the three local safeguarding partners (the local authority; a clinical commissioning group for an area, any part of which falls within the local authority; and the chief officer of police for a police area, any part of which falls within the local authority area) to make arrangements to work together to safeguard and promote the welfare of local children including identifying and responding to their needs • the framework for the two child death review partners (the local authority and any clinical commissioning group for an area, any part of which falls within the local authority) to make arrangements to review all deaths of children normally resident in the local area, and if they consider it appropriate, for those not normally resident in the area 2. This document replaces Working Together to Safeguard Children (2015). Links to relevant supplementary guidance that practitioners should consider alongside this guidance can be found at Appendix B.
more...
No comment yet.
Scoop.it!

Family Lore: Standard Family Orders Handbook: Volume Two - Children and Other Orders

Family Lore: Standard Family Orders Handbook: Volume Two - Children and Other Orders | Children In Law | Scoop.it
Musings of an English family lawyer.
more...
No comment yet.
Scoop.it!

M (BIIa Article 19: Court First Seised) [2018] EWCA Civ 1637

M (BIIa Article 19: Court First Seised) [2018] EWCA Civ 1637 | Children In Law | Scoop.it
Case No: B4/2018/0387 Neutral Citation Number: [2018] EWCA Civ 1637 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE FAMILY COURT MR JUSTICE MOSTYN SD16P00646 Royal Courts of Justice Strand, London, WC2A 2LL Date: 12 July 2018 Before : LORD JUSTICE HAMBLEN LORD JUSTICE MOYLAN and LORD JUSTICE PETER JACKSON - - - - - - - - - - - - - - - - - - - - - Re: M (BIIa Article 19: Court First Seised) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Kristina Hopper (instructed by Goodlaw Solicitors) for the Appellant mother Timothy Scott QC (by Direct Access) for the Respondent father Hearing date: 21 June 2018 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Peter Jackson: 1. The ultimate issue on this appeal is whether the Family Court was right to assert its jurisdiction over two children, now aged 6 and 4, and, having done so, to order their mother to return them to this country from Poland. The appeal is formally brought against a decision refusing to set aside such an order, which in turn requires consideration of the validity of the order itself. The background 2. These children’s parents are professional people, the mother being Polish and the father Hungarian. They met at a conference in 2010 and in 2012 the elder child was born. Later that year they married and the mother and child moved to England to join the father, who was working here. The mother herself also worked. In 2013, the younger child was born. Until May 2016, the family was based in England, although the mother returned to Poland with the children for significant periods due to difficulties in the marriage. 3. The mother then took matters into her own hands. On 19 May 2016, she travelled to Poland with the children for a 10-day holiday, but she did not return on the due date and instead told the father that she would not be returning and wanted a divorce. 4. The mother returned to England without the children to attend mediation with the father. On 12 June 2016, she and the father travelled to Poland. On 20 June, the father took the children to Hungary without the mother’s knowledge. On 29 June, he returned to England with them. The mother then came back to England on 6 July, and on 30 July she again unilaterally took the children to Poland. The children have remained there since then, and they have only seen their father sporadically in the two years that have since passed. The litigation 5. These events led to protracted litigation in both jurisdictions, with the mother seeking to establish jurisdiction in Poland and the father jurisdiction in England. 6. On 2 June 2016, the mother, acting in person, issued an application for custody in the Lodz District Court. On 14 July 2016, that application, which was never served on the father, was dismissed on paper by Judge Rzeznik on the basis that the children were habitually resident in England and that the Polish court therefore lacked jurisdiction. By then the children were, of course, back in England with the father. 7. On 30 June 2016, the mother submitted a child abduction application to the Polish central authority under the Hague Convention 1980. At that time she believed that the children were in Hungary. The application was withdrawn on 1 August, the mother having retrieved the children in the meantime. 8. The first application in this jurisdiction was made by the father on 4 July 2016. He applied under the Children Act 1989 to the Family Court at Brighton for a child arrangements order and a prohibited steps order to prevent the children’s removal from England. An order in these terms was made that day at a hearing of which the mother had no notice. (It is not clear why she was not given at least short notice, as should have happened, but nothing now turns on that.) The order was expressed to last until a further hearing on 18 July 2016. The application and order were immediately notified to the mother and were later personally served on her. 9. When the matter came back before the court on 18 July, the parents were both represented. The mother raised the issue of jurisdiction but did not inform the court that her application to the court at Lodz had been dismissed on 14 July (she says she was unaware until later). The judge therefore stayed the English proceedings pending confirmation from the Polish court that there were applications predating the application to the English court and, if such confirmation were received, invited the Polish court to determine the issues of jurisdiction and habitual residence. In the meantime, the court put in place holding arrangements for the children’s care and ordered that neither parent was to remove them from England and Wales, except that they were permitted to travel with one or both parents to Poland for any court hearing. It was in purported reliance on this proviso that the mother removed the children to Poland on 30 July without the father’s knowledge. 10. On 13 July 2016, the mother had issued an application for divorce in Poland. On 14 September 2017, the Polish court rejected the father’s application for it to be dismissed. 11. On 1 August 2016, the mother, by now legally represented, requested the Court at Lodz to reverse its decision of 14 July and to assume jurisdiction. Applying under the same case number as before, she submitted further evidence, including information about the stance of the English court on 18 July. It is clear from the resulting order that this request was made under Article 395(2) of the Polish Civil Code. Again, no notice was given to the father. On 5 August, the matter came before Judge Rzeznik, who set aside her earlier order, accepted jurisdiction, and established the children’s residence with their mother until a final decision could be made. At that point the children were of course back in Poland. On 16 August, the father lodged an appeal against this decision. 12. Coincidentally, on 5 August 2016 the matter had been before the court at Brighton on the application of the father for enforcement of the prohibited steps order. The court considered that the mother had been entitled to take the children to Poland for the purposes of attending court there and that accordingly she would not be in breach of the order provided that she returned the children to England by 10 August at the latest. It lifted the stay on the English proceedings and directed that the matter return on 12 August. 13. Also on 5 August, but after the conclusion of the English hearing that day, the Lodz District Court responded to the request for information made to it by the English court. In an email to the court at Brighton, it advised that the mother’s application regarding the children had been submitted to the court at Lodz on 2 June. Although not explicitly stated, one inference is that those proceedings were continuing since that date; in a later ruling on 7 December 2016 (see below), Judge Rzeznik appeared to confirm the existence of a pending Polish jurisdiction from 2 June onwards. 14. On 12 August 2016, the matter came before Keehan J. The father’s appeal in Poland against the order of 5 August was due to be heard on 1 September, and the English proceedings were therefore adjourned to 16 September, when they were adjourned generally with liberty to restore, the father wishing to prioritise Hague Convention 1980 proceedings in Poland for the return of the children. 15. The father’s child abduction application was issued on 4 October 2016. It was heard by Judge Rzeznik on 5 December 2016 and dismissed on 7 December on the grounds that the children were not habitually resident in this jurisdiction when they were removed to Poland by the mother, and on the basis of grave risk of harm (Article 13b). On 28 March 2017, the father appealed from that decision. This appeal, together with his appeal from the 5 August 2016 decision in relation to jurisdiction. were dismissed by three judges of the District Court in Lodz on 13 June 2017, who found that in respect of jurisdiction the Polish proceedings “started on 2 June 2016”, that the judge’s decision on habitual residence had been correct and that the December decision in regard to the child abduction application had also been correct. 16. On 20 October 2016, the father issued an English divorce petition; on 6 March 2017 this was stayed until the conclusion of the mother’s Polish divorce proceedings. 17. There have been other applications, including by the father in Poland for contact. On 9 May 2017, an order was made for him to see the children, but only in Poland and in the presence of the mother. Both parties have appealed this order: the father on the ground of the restrictions imposed; the mother on the ground that no contact should have been awarded. On 14 September 2017, the Regional Court at Lodz directed the father to lodge the children’s Hungarian passports before contact took place; on 15 May 2018, the Court of Appeal dismissed the father’s appeal from this order. There have also been proceedings in Poland by which the father was ordered to pay child maintenance, and enforcement proceedings in this jurisdiction as a result of his failure to do so. The father has also applied to the European Court of Human Rights, alleging violations by the Polish courts. 18. We now come to the sequence of events giving rise to this appeal. In March 2017, the father applied to lift the stay on his Children Act proceedings and sought declarations establishing an English jurisdiction over the children and an order for their return. Detailed directions were given by Hayden J on 12 June 2017. The mother did not attend that hearing, but had written several times to the court. She asserted that the Polish court had exclusive jurisdiction and asked for the English proceedings to be suspended. If this did not happen, she requested that her evidence be heard by video link “by way of judicial assistance by the Polish court”. Hayden J set the father’s application down for a 2-day hearing on 31 October 2017. Both parents were required to attend that hearing but there was provision for the mother to give evidence by video link if she notified the court and the father’s solicitors of her wish to do so by 26 June. The mother was to be responsible for setting up and testing the link. She was also to notify the court as soon as possible if she required an interpreter. The order contained provisions about the way in which expert evidence on Polish law was to be gathered, and settled the questions that were to be asked. 19. On 26 June 2017, the mother wrote to the English court. She again requested that the English proceedings should not go ahead in light of the Polish orders, but if they continued she asked for further time to prepare, for an interpreter, for a video link and for legal aid. She also notified the court, in accordance with the previous directions, that she did not agree the identity of the legal expert proposed by the father. She suggested that that the Polish Ministry of Justice should be asked to advise on Polish law. 20. There is no indication that the mother’s correspondence with the court received judicial attention, but from mid-October there was ineffectual correspondence between the father, the father’s solicitor and the mother about the mother’s intentions for attending the forthcoming hearing. 21. So it was that the matter came before Mostyn J on 31 October and 1 November 2017. I will call this “the main hearing”. The father appeared in person. The mother did not attend. On 14 November the judge handed down a judgment in which he found that the English court had exclusive jurisdiction, and he ordered the mother to bring the children to this country by 15 December for them to live in the family home with alternating week-on week-off care from each parent: see GM v KZ [2017] EWFC 73. 22. The mother immediately responded on 15 November, drawing attention to the requests made in her message to the court of 26 June. She said that she asked the court manager at Lodz to organise the oral evidence but had been told that it would be organised by the court itself, and that she had heard nothing more. 23. Mostyn J treated the mother’s response as an application to set aside his judgment under rule 27.5 of the Family Procedure Rules 2010. On 15 November, he made an order setting that application down for hearing on 22 November and directed that the mother could attend by video-link or telephone. She was to signify which she preferred by 20 November and the necessary arrangements would then be made. 24. On 21 November, the Consular Section of the Embassy of the Republic of Poland in London wrote to the court asserting that a request to take direct evidence from the mother had to be made via the Polish Central Authority pursuant to Article 17 of Council Regulation (EC) No. 1206/2001 ("the Evidence Regulation"). The mother had agreed to attend by video link but the English court had not approached the Polish court to make arrangements for her to do so. The mother wrote to the court in similar terms. 25. On 22 November, the matter again came before Mostyn J. The father attended; the mother did not. The judge adjourned the matter until 29 November. He ruled that FPR 27.3 required the mother’s personal attendance, but that the order of 15 November had allowed her to attend by telephone or video link as a concession, and he noted that she had been given all the necessary contact numbers. As no oral evidence would be taken on a set-aside application, the Evidence Regulation was not relevant. In the light of what the judge described as “the continued meritless obstacles generated by the mother to remote participation in any form”, he ordered her to attend in person on 29 November. 26. On 29 November, the mother did not attend but was represented by counsel. Directions were given for statements to be filed and the matter was adjourned to 22 January 2018. 27. On 4 December the mother, by now represented, formally applied to set aside the 14 November order and on 22 December she filed a statement. In it she said that her Polish lawyers had advised her that the video link should be arranged via the Polish court, which had in turn informed her that this should be done under the Evidence Regulation following a request from the English court. She had also contacted a number of government agencies, who had confirmed this. 28. The matter came back before Mostyn J on 22 January 2018, on which occasion both parents were represented by counsel. In his second judgment, given on 30 January, the judge dismissed the mother’s application to set aside his November decision, refixed the date for the children to be returned to England as being 27 February, and remitted the matter to the court at Brighton to determine the future arrangements of the children: see GM v KZ (No 2) [2018] EWFC 6. 29. On 20 February, the mother sought permission to appeal. This was granted by Moylan LJ on 16 March, a stay having been granted in the meantime. 30. From this review, it can be seen that the welter of litigation arising from the unilateral actions of these parents has brought no resolution for their children, and that there are at present irreconcilable decisions about them in the two legal jurisdictions. The law 31. I will outline the law regarding (1) applications to set aside, (2) jurisdiction in matters of parental responsibility, and (3) the taking of evidence from EU Member States. 32. Rule 27.5 of the Family Procedure Rules 2010 governs the approach to setting aside a judgment or order following a party’s failure to attend: “27.5 (1) Where a party does not attend a hearing or directions appointment and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside. (2) An application under paragraph (1) must be supported by evidence. (3) Where an application is made under paragraph (1), the court may grant the application only if the applicant – (a) acted promptly on finding out that the court had exercised its power to enter judgment or make an order against the applicant; (b) had a good reason for not attending the hearing or directions appointment; and (c) has a reasonable prospect of success at the hearing or directions appointment.” The hurdles presented by sub-rule (3) are cumulative. If the application is to succeed the applicant must clear them all. 33. This court has given guidance on the application of the equivalent provision in the Civil Procedure Rules, CPR 39.3. 34. In Bank of Scotland Plc v Pereira [2011] 1 WLR 2391 Lord Neuberger MR said: “26. The strictness of this trio of hurdles is plain, but the rigour of the rule is modified by three factors. First, what constitutes promptness and what constitutes a good reason for not attending is, in each case, very fact-sensitive, and the court should, at least in many cases, not be very rigorous when considering the applicant's conduct; similarly, the court should not pre-judge the applicant's case, particularly where there is an issue of fact, when considering the third hurdle. Secondly, like all other rules, CPR 39.3 is subject to the overriding objective, and must be applied in that light. Thirdly, the fact that an application under CPR 39.3 to set aside an order fails does not prevent the applicant seeking permission to appeal the order. It is not very convenient, but an applicant may be well advised to issue both a CPR 39.3 application and an application for permission to appeal at the same time, or to get agreement from the other party for an extension of time for the application for permission to appeal.” 35. In Mohun-Smith v TBO Investments [2016] EWCA Civ 403, [2016] 1 WLR 2919, Lord Dyson MR said: “24. I recognise that an appellate court should be slow to interfere with a decision of a lower court on the question of whether a litigant had a good reason for not attending a trial. Such a decision is a fact-sensitive evaluation made in the light of all the circumstances. It is the kind of decision that an appellate court will only strike down for reasons analogous to those which justify interfering with an exercise of discretion. But in making that assessment, the judge must have regard to the guidance given in Pereira and Estate Acquisition and the need, when applying rule 39.3(5)(b), to seek to give effect to the overriding objective of dealing with cases "justly" and to comply with article 6 of the European Convention on Human Rights ("the Convention"). This is particularly important where, as in the present case, the party has a reasonable prospect of success at the trial. In such a case, the court should usually not adopt a very rigorous approach to the question whether the litigant has shown a good reason for not attending.” 36. It should be noted that FPR 27.3 requires that unless the court directs otherwise, a party shall attend a hearing or directions appointment of which that party has been given notice. This provision is specific to family cases, but it is not infrequently relaxed, particularly in international cases where a party is represented or able to attend by telephone or video link: it will all depend upon the circumstances. 37. At all events, the ‘reasonable prospect of success’ hurdle requires consideration of the validity of the underlying decision. It is therefore necessary to look at the provisions relating to jurisdiction. 38. Questions of jurisdiction, recognition and enforcement in matters of parental responsibility are governed by the Council Regulation (EC) No 2201/2003 (‘Brussels IIa’). The purpose of the Regulation is to promote judicial cooperation (Recital 1), with recognition and enforcement of judgments to be based on the principle of mutual trust (Recital 21). 39. Article 8(1) supplies the foundation for jurisdiction in cases of parental responsibility: “Article 8 General jurisdiction 1. The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised. …” 40. Articles 19(2) and (3) relate to actions proceeding in more than one state: “Article 19 Lis pendens and dependent actions … 2. Where proceedings relating to parental responsibility relating to the same child and involving the same cause of action are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. 3. Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court. …” 41. Article 16(a) defines seisin: “Article 16 Seising of a Court 1. A court shall be deemed to be seised: (a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent; …” The requirement of the proviso is not an obligation to serve but rather an obligation to take the steps one is required to take to have service effected, as prescribed under domestic law. It is therefore necessary to know what domestic law requires before it can be said that there has been a failure. 42. This court has determined that, following a refusal of jurisdiction, seisin continues pending an appeal: Moore v Moore [2007] EWCA 361 (see below). 43. Articles 24 and 26 preclude the review of matters of jurisdiction or of substance: “Article 24 Prohibition of review of jurisdiction of the court of origin The jurisdiction of the court of the Member State of origin may not be reviewed. … Article 26 Non-review as to substance Under no circumstances may a judgment be reviewed as to its substance.” 44. In P v Q (Case C-455/15 PPU), [2016] 1 FLR 337, a recognition case with otherwise similar facts to the present case, the European Court of Justice said this: “46. Moreover, it must be recalled that the court of the State in which recognition is sought cannot, without calling into question the purpose of Regulation No 2201/2003, refuse to recognise a judgment from another Member State solely on the ground that it considers that national or EU law was misapplied in that judgment.” The reference to the purpose of the Regulation is a reference to the principle of mutual trust (see P v Q at [35]). 45. Article 55 provides a mechanism whereby information about a child’s situation can be obtained from another state: “Article 55 Cooperation on cases specific to parental responsibility The central authorities shall, upon request from a central authority of another Member State or from a holder of parental responsibility, cooperate on specific cases to achieve the purposes of this Regulation. To this end, they shall, acting directly or through public authorities or other bodies, take all appropriate steps in accordance with the law of that Member State in matters of personal data protection to: (a) collect and exchange information: (i) on the situation of the child; …” 46. Finally, the taking of evidence from another Member State is governed by the Evidence Regulation. Article 17 establishes a machinery whereby the court requesting the evidence submits a request in prescribed form to the central authority of the other state. Arrangements can then be made for the witness to attend at the domestic court, either to give evidence to a judge there, or to give evidence by video link to the requesting court. These provisions are incorporated into our rules of court by FPR Practice Direction 24A, in particular at paragraph 9. 47. In this court’s experience, the Evidence Regulation is little used in international family proceedings. By contrast, the taking of evidence or submissions by video link or telephone, as contemplated by the orders made in this case, is very common and is achieved by cooperation between the court and the party wishing to call the evidence. The Regulation requires a more formal process, which is no doubt the reason why it is not used more often. Nonetheless, judges faced with problematic issues about taking evidence remotely from a Member State should be aware that other States and their nationals may expect that the Regulation will be used and take account of this when determining the arrangements that should apply. Depending on the circumstances, it may not be necessary or appropriate to invoke the Regulation, but if it is simply side-stepped, there may be problems of the kind that arose in this case. 48. In passing, I note that the judge inadvertently referred to this regulation as “the Service Regulation”. We are not concerned in this case with Council Regulation (EC) No. 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, which allows service of judicial documents without recourse to consular or diplomatic channels. The judge’s decisions 49. The operative parts of the judge’s reasoning in his November decision were these: * The children were habitually resident in England and Wales on 2 June and 4 July 2016. [paras. 10 & 41(ii)] * The mother’s application of 2 (sc.1) August 2016 was not an appeal properly so-called, but a new application. It should have been stayed by the Polish court pursuant to Art.19(2). [30] * Additionally, the mother’s applications of 2 June and 1 August cannot establish priority over the English proceedings because, contrary to Art. 16 of BIIa, they were never served. [31,33] * Having reviewed the evidence before both courts, the decisions of the Polish court in July and December 2016 in relation to habitual residence were incorrect. [36-37] * The decision of the Polish appeal court in June 2017 did not explain how it could have accepted that the children were habitually resident in Poland in June 2016. [39] * In consequence, while the Polish court was first seised with welfare proceedings on 2 June 2016, it lost that seisin when the proceedings were not served on the father and in any event on 14 July 2016 when the mother’s application was dismissed. It reacquired seisin on 1 August 2016 but that seisin was subservient to the seisin by then established in the English Court on 4 July 2016. Accordingly, the Family Court of England and Wales has exclusive jurisdiction to determine the welfare proceedings upon the basis of Article 8. [41(iii)] * Although the children had been in Poland for 15 months, the court should not transfer the case to Poland under Article 15. [42] * The children should be summarily returned to England, taking account of the mother’s breach of the order of 5 August 2016, the fact that the father would not feel that he would have a fair trial in Poland, and the principle that children should be in the place from which they have been wrongfully taken. [42] * The Polish court would be required to recognise and enforce this decision under Articles 21 and 28, and (in that the Article 13b defence had been made out) under Art 11.8. 50. The operative parts of the judge’s reasoning in his January decision were these: * The mother had acted promptly in seeking to set aside the order. [13] * Conflicting expert evidence on Polish law provided by the parties (though not in accordance with the process directed by Hayden J) did not help to decide the essential character of the application made by the mother on 1 August 2016. [22] * The court’s original assessment of the character of the 1 August application was correct. [24] * Similarly, the court’s original assessment of the Article 16 service requirement was correct. [28] * Accordingly, the mother had no reasonable prospect in success in overturning the November judgment. [29] * Additionally, the mother had no good reason for failing to attend the November hearing. [30] * Her application would therefore be dismissed. [31] * Remarks about the approach of the Polish court in the original judgment were observational, did not amount to a direct review of the legitimacy of those steps, and were not a necessary component of the decision. [32] * The mother’s argument that the court lacked the necessary evidence to make a summary return order was not accepted; the mother could apply for protective measures before the date for return. [33] The grounds of appeal 51. On behalf of the mother, Ms Hopper submits that: 1. The judge was wrong to hold that the Polish Court was not seised of the matter as at 4 July 2016, when the English proceedings were first issued. 2. The judge impermissibly reviewed the jurisdiction and merits of the decisions of the Polish courts. 3. The judge was wrong to find that the mother did not have a good reason for attending the hearing on 31 October. 4. An order for the children’s return should not have been made as it did not take proper account of their welfare. 5. In consequence of all the above, the decision in January not to set aside the November decision was wrong. 52. Mr Scott QC, for the father, submits that the judge was right on all these issues. He emphasises that no permission to appeal the November order has been sought or granted. On the issue of seisin, the judge was entitled to the view he reached in the light of such limited expert evidence as he had. He was also right to view the mother as having had no good reason for non-attendance. FPR 27.3 adds an important element to the analysis found in cases such as Mohun-Smith and should mean that the family court is less indulgent than the civil court might be. The judge was also right to find that the Evidence Regulation did not apply, as oral evidence was not going to be heard at the set-aside hearing. The court was not obliged to make a request to Poland; it was sufficient to give the mother an opportunity to attend, but she had spurned it. Finally, if the appeal is allowed, Mr Scott fairly accepted that this court could substitute its own conclusion on the substantive issue of jurisdiction for that of the judge, but urged that the better course would be to remit the matter for a rehearing, which would give his client the opportunity to file further evidence. Conclusions 53. Neither parent can be proud of their actions. It is understandable that the judge was concerned at the mother’s removal of the children from England without the father’s knowledge and agreement, not once but twice, and by her reluctance to participate in these proceedings except on her own terms. He was also clearly bemused at the Polish court’s reversal of its original ruling on jurisdiction. I have nevertheless concluded that his decision to refuse the mother’s application for the reopening of his November decisions was wrong in a number of ways. 54. Dealing firstly with the mother’s non-attendance, the judge gave no weight to her argument, subsequently reinforced by the Polish authorities, that she should have been given the opportunity to give evidence under the procedure contained in the Evidence Regulation, with arrangements for that being made court-to-court. Instead, by his ruling on 22 November 2017, he concluded that the Regulation did not apply to the set-aside application because no oral evidence would be taken. But the relevant question was rather whether the Regulation might have applied to the main hearing when, by virtue of Hayden J’s order, oral evidence was due to be taken. The judge did not consider this issue in either of his judgments. Had he done so, he could not have concluded that the mother’s position was completely meritless, bearing in mind the advice she had received from the Polish authorities and, apparently, from her Polish lawyers. The fact that this scheme of things did not accord with the regime laid down by the English court at a hearing in which she did not participate was incorrectly treated by the judge as conclusive in a case that at least arguably engaged the Regulation. 55. I would also reject Mr Scott’s submission that rule 27.3 should lead the court in family proceedings to depart from the approach endorsed by this court in Mohun-Smith. Where there is a reasonable prospect of success the court should not take a very rigorous approach to what constitutes a good reason for non-attendance, particularly when it is considering an international case with a foreign litigant in person. 56. The mother’s position was undoubtedly frustrating to the father and to the court, which understandably wanted to use the valuable time allotted to this case to resolve the issues in a way that was fair to both parents, and not just to the mother. Despite that, I conclude that the judge misevaluated the issue under rule 27.5(3), in that he held the Evidence Regulation to be irrelevant, and that (in the light of the jurisdictional merits discussed below) he took an unduly rigorous approach to the mother’s explanation for non-attendance. 57. The mother was then required to show that she would have had a reasonable prospect of success on the question of jurisdiction and/or summary return had she attended the main hearing. It is therefore necessary for this court to analyse these issues, even though they arise indirectly via the appeal from the January order, rather than directly through an appeal from the 14 November order. In any event, as Hamblen LJ noted in the course of the argument, it was the judge who set matters on the route to an application to set aside his November order, rather than requiring the mother to appeal. 58. On the question of jurisdiction, the first issue is whether the Polish court became seised on 2 June 2016. There is no doubt that it did, on the lodging of the mother’s application. 59. The next, and critical, issue is whether the Polish court remained seised between 14 July 2016 (when the mother’s application was dismissed) and 5 August 2016 (when it was granted), or whether, as the judge found, seisin was lost by virtue of the decision of 14 July 2016, with the result that the English proceedings that had begun on 4 July 2016 then took precedence. 60. On this issue, the judge had little help at the main hearing, with the father in person, the mother absent and the expert evidence in moderate disarray. He carried out his own analysis and concluded that the mother had made a fresh application on 1 August 2016. 61. Under BIIa, where there are proceedings in more than one Member State, seisin is the gateway to establishing which proceedings take precedence. One must therefore identify what were the relevant “proceedings” for purposes of Arts. 16 and 19 of BIIa. Here, the position under the domestic law of the Member State becomes significant. As these are domestic proceedings, the answer is in all normal circumstances one that the domestic court is best placed to provide. Here, it is in my view of considerable significance that the Polish courts of first instance and of appeal considered that their seisin had continued uninterrupted since 2 June 2016 – see paragraphs 13 and 15 above. That was something to which the judge was obliged to give very considerable, and arguably decisive, weight. I would also demur from his dismissal of the fact that the mother’s application had continued under the same file number as “a very lightweight factor”, when it was consistent with the Polish court’s own interpretation of the status of its proceedings. 62. In his first judgment the judge noted the decision in Moore v Moore (above) on the consequences for ongoing seisin of an appeal against a refusal of jurisdiction, citing this passage from that decision: “103. The effect of an appeal from a decision by the court first seised that it has no jurisdiction does not appear to be settled by authority: c.f. Dicey, Morris & Collins, Conflict of Laws, 14th ed. 2006, paras 12-047, 12-062; Briggs and Rees, Civil Jurisdiction and Judgments, 4th ed 2005, para 2.205. It is true that a judgment for the purposes of Brussels I is final even if an appeal is pending: e.g. Articles 37 and 46. But the object of Article 27 is to prevent irreconcilable judgments, and as a matter of policy it would be very odd if proceedings in the court second seised could continue even if on appeal the jurisdiction of the court first seised is established. Consequently, we consider (contrary to the view of the judge) that Article 27 applies until the proceedings in the court first seised are finally determined in relation to its jurisdiction. That would mean that the expression in Article 27.1 "until such time as the jurisdiction of the court first seised is established" should be interpreted to include the case where the court first seised has declared that it has no jurisdiction, but an appeal is pending against that decision …” 63. In his second judgment, the judge also noted that there is no case that decides that a successful application to set aside a decision refusing jurisdiction restores seisin. For my part, I can see no reason why the decision of this court in Moore should not apply equally, or indeed a fortiori (with stronger reason), to a regularly-constituted application to set aside as it does to an appeal. This is a further reason why I cannot share the judge’s interpretation of the Polish court’s seisin. 64. The judge’s analysis of the issue of seisin was accompanied by his own evaluation that the children had “obviously” been habitually resident in England, both on 2 June and 4 July. This in turn led him to characterise Judge Rzeznik’s first assessment as correct and her second assessment as incorrect. In my view, these remarks cannot be regarded as observational or incidental, but were integral to the judge’s critique of the approach of the Polish court and to his conclusion that exclusive jurisdiction lay with the English court. Whatever its merits, the critique amounted in a review of jurisdiction and of substance that was impermissible by virtue of Articles 24 and 26. 65. I next come to the question of service. The judge’s conclusion at paragraph 33 of his first judgment was that in order to seise the Polish court definitively it was necessary to serve the process on the father. That is indeed what the expert evidence said but, as Moylan LJ noted during the hearing, it is not correct as matter of EU law. A court is seised when proceedings are “lodged”, but subject to the proviso that the applicant has not failed to take the required steps for service to be effected. In this case, it seems that the court was responsible for service, and the judge had no evidence that could have led him to conclude that the mother was in default so as to trigger the condition that would remove seisin from the Polish court. This issue therefore could not represent the obstacle to the mother’s case that the judge considered it to be. 66. For these reasons, I have concluded that the judge’s approach to the question of seisin, and consequently to the question of jurisdiction, was also incorrect. 67. The overall consequence is that the mother’s application to set aside the 14 November 2017 order should have been allowed on the basis that she had had a good reason for non-attendance and a reasonable prospect of success within the terms of FPR 27.5. 68. I am also of the view that, even if the English court had jurisdiction, the judge was wrong to direct the summary return of the children to England. They had been in Poland for 18 months by the time of the January order. They were subject to active Polish proceedings in which the father had participated, and the Polish court had specifically declined to order their return, both at first instance and on appeal, and had placed conditions upon the father’s contact. In these circumstances, an order for summary return into the alternating care of each parent was an exceptionally strong order and one that required strong justification, 69. The judge’s reasoning is contained in this paragraph: “42. The final question set for me by the order of Mr Justice Hayden is this: if this court has primary jurisdiction to determine welfare issues, should the court order the summary return of the children to this jurisdiction? Although the order of 5 August 2016 did not explicitly order the mother to return the children by 10 August 2016, there was a clear judicial expression that unless the mother did so she would be in breach of the prohibited steps order. This militates strongly in favour of making an effective order to bring the children back to the place which has exclusive jurisdiction over them. On the other hand, the children have now been in Poland for 15 months. This might suggest that in practical terms it would be better for the Polish court to deal with the matter and that I should make an order transferring the case to Poland under article 15. However, for the reasons set out above I am quite sure that were I to do so the father would not feel that he had any prospect of gaining a fair trial. There is also the important principle to be observed that children should be in the place from which they have been wrongfully taken.” It can be seen that the mother’s breach of the orders of 18 July and 5 August 2016 weighed very heavily with the judge, indeed it was the single reason for his decision that the children’s immediate return was in their best interests. 66. An order that summarily changes a child’s country of residence can sometimes be based on a single-issue assessment, as where the removal from the home country is very recent. Otherwise, the court will need at least some dependable information on a range of welfare checklist factors. The approach of the Supreme Court in Re J (a child) [2005] UKHL 40, considering the reverse fact-pattern of whether children should be summarily returned from this jurisdiction to a non-Hague country, is helpful. Baroness Hale said this: “32. The most one can say, in my view, is that the judge may find it convenient to start from the proposition that it is likely to be better for a child to return to his home country for any disputes about his future to be decided there. A case against his doing so has to be made. But the weight to be given to that proposition will vary enormously from case to case. What may be best for him in the long run may be different from what will be best for him in the short run. It should not be assumed, in this or any other case, that allowing a child to remain here while his future is decided here inevitably means that he will remain here for ever. 33. One important variable, as indicated in Re L, is the degree of connection of the child with each country. This is not to apply what has become the technical concept of habitual residence, but to ask in a common sense way with which country the child has the closer connection. What is his 'home' country? Factors such as his nationality, where he has lived for most of his life, his first language, his race or ethnicity, his religion, his culture, and his education so far will all come into this. 34. Another closely related factor will be the length of time he has spent in each country. Uprooting a child from one environment and bringing him to a completely unfamiliar one, especially if this has been done clandestinely, may well not be in his best interests. A child may be deeply unhappy about being recruited to one side in a parental battle. But if he is already familiar with this country, has been here for some time without objection, it may be less disruptive for him to remain a little while longer while his medium and longer time future is decided than it would be to return.” 67. In the present case, the judge did not have enough reliable information to know where the children’s best interests lay. They had been in Poland for a considerable period of time and had had no recent parenting from their father. From their point of view, shortcomings in the behaviour of adults, and of their mother in particular, could be of little immediate consequence. At the least, the judge should have considered obtaining further information, for example through the Article 55 mechanism, about the children’s perspective and current circumstances before considering a return order and an order for their transfer into equal shared parental care. The mother’s ability to apply for protective measures did not compensate for this lack of primary information. In the absence of such an analysis, an order for summary return should not have been made. 68. I would add that the judge’s comment on the fairness of the Polish court’s treatment of the father, arising from his overall view of the case, was, I think, unfortunate. The purpose of the Brussels regulation is to foster practical comity between jurisdictions for the benefit of families. This calls for an acceptance of outcomes that are on occasion surprising or unpalatable. Where a case does not fall within the grounds for the non-recognition of orders under Article 23, criticism of the courts of other jurisdictions is not warranted. 69. I would therefore allow the mother’s appeal and set aside the order of 30 January 2018. 70. The question then arises as to whether the matter should be remitted to the Family Court for it to reconsider the order of 14 November 2017. I see no purpose in that. At issue is a matter of law. This court is in as good a position as a trial court resolve it, and has had to do so for the purpose of the appeal. Both parties have filed evidence and there is nothing more that could be said if the matter were remitted. That course would cause even further delay and expense and would not serve the children’s interests. This court should therefore make its own determination on the underlying issue of jurisdiction. 71. Looking at the material before us, extensively summarised above, I consider that it leads to the conclusion that the Polish court became and has remained seised of jurisdiction in relation to these children as from 2 June 2016. Accordingly, the English courts must under Art. 19(3) decline jurisdiction in relation to matters of parental responsibility in favour of the courts of the Republic of Poland. I would therefore allow this appeal and dismiss the proceedings brought by the father in Brighton in July 2016. The outcome is very far from resolving the many difficulties in this family’s situation, but at least it removes the additional obstacles that arise from the existence of irreconcilable decisions. Lord Justice Moylan: 72. I agree. Lord Justice Hamblen: 73. I also agree.
more...
No comment yet.
Scoop.it!

Transparency Project

Transparency Project | Children In Law | Scoop.it
Fundraise or donate to The Transparency Project with JustGiving, the worlds leading online fundraising platform, helping charities to make more with GiftAid...
more...
No comment yet.
Scoop.it!

36,000 children are at risk of potential abuse and neglect in a cycle of repeated referrals | Action for Children

36,000 children are at risk of potential abuse and neglect in a cycle of repeated referrals | Action for Children | Children In Law | Scoop.it
Research reveals children are repeatedly referred to children’s social care without receiving the support they need.
more...
No comment yet.
Scoop.it!

Family Law Week: Supreme Court to deliver judgment on section 20 accommodation

Family Law Week: Supreme Court to deliver judgment on section 20 accommodation | Children In Law | Scoop.it
Home > News Supreme Court to deliver judgment on section 20 accommodation Court of Appeal found no breach of Human Rights Act On Wednesday, 18 July, the Supreme Court will give judgment in Williams and another v London Borough of Hackney. The court will consider the lawfulness of the accommodation of the appellants' children by the respondent local authority under section 20 of the Children Act 1989. On 5 July 2007 the appellants' children were taken into police protection pursuant to s 46 of the Children Act 1989 in response to allegations of assault and neglect. The appellants were granted police bail, a condition of which was that no unsupervised contact was permitted with the children. The respondent local authority placed the children with foster parents and sought the appellants' consent to continue the accommodation under s 20 after the police protection period ended. The appellants shortly thereafter objected to the accommodation beyond 23 July 2007 pursuant to s 20(7) but the children were not returned to them until 11 September 2007 after the bail condition was lifted. Criminal proceedings against the appellants were later discontinued. After pursuing complaints to the Local Government Ombudsman, the appellants issued proceedings for damages for misfeasance in public office, negligence, religious discrimination and for breach of their rights under the Human Rights Act 1998. For the Court of Appeal judgment, prefaced by a detailed summary by Emily Ward of Broadway House Chambers, click here. 15/7/18 Keywords:damageshuman rightssection 20 agreementsSupreme Court
more...
No comment yet.
Scoop.it!

Family Law Week: Separated migrant children to be granted legal aid

Family Law Week: Separated migrant children to be granted legal aid | Children In Law | Scoop.it
Home > News Separated migrant children to be granted legal aid MoJ written statement follows judicial review of legal aid cuts The Ministry of Justice has announced that it will amend the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) to bring immigration matters for unaccompanied and separated children into scope of legal aid. The announcement was contained in a written statement to the House of Commons by Lucy Frazer, Parliamentary Under Secretary of State for Justice. The statement noted that under current legislation, whilst legal aid is available in all asylum cases and immigration cases where someone is challenging a detention decision, legal aid for other immigration matters is available only via the Exceptional Case Funding (ECF) scheme. Ms Frazer said: "Following a judicial review brought by the Children's Society, we have examined both the evidence presented as part of the case and our data on applications for funding. Based on the distinct nature of the cohort in question, and of our data regarding them, I have decided to bring these cases into the scope of legal aid to ensure access to justice." The Children's Society's research suggested that thousands of children have been denied legal aid since LASPO came into force in 2013.  Since then, only a small number have been able to access legal aid through Exceptional Case Funding. The charity says that the change has left many children struggling to pay for the expert legal advice and representation they desperately need, which can cost thousands of pounds. Reacting to the decision, The Children's Society Chief Executive, Matthew Reed said: "The Children's Society is delighted with this excellent news. This is an important change in policy which will go a long way to protecting some of the most marginalised and vulnerable young people in our communities. "Legal aid is absolutely vital for ensuring that children can access justice. For children who are subject to immigration control and who are in this country on their own, it is an absolute life line. The government should be commended for this significant change for children and young people." In its recent report, Rights without Remedies, Coram Children's Legal Centre estimated that there are several thousand children in local authority care where immigration is the primary issue, not asylum or trafficking. CCLC's Migrant Children's Project alone advised in the cases of 234 separated children and young people with an out-of-scope immigration issue last year. This advice casework formed the basis of a witness statement to the judicial review, brought by Islington Law Centre and The Children's Society, of the cuts to legal aid for this group. For the MoJ written statement, click here. For The Children's Society's response, click here. For more information about the issue from CCLC, click here. 14/7/18 Keywords:childrenimmigrationlegal aidunaccompanied children
more...
No comment yet.
Scoop.it!

RVH v TF (Non Hague Convention: Refusal of Summary Return) [2018] EWHC 1680 (Fam) (14 June 2018)

RVH v TF (Non Hague Convention: Refusal of Summary Return) [2018] EWHC 1680 (Fam) (14 June 2018) | Children In Law | Scoop.it
more...
No comment yet.
Scoop.it!

BA & Anor v JA & Ors (female genital mutilation protection orders and immigration appeals) [2018] EWHC 1754 (Fam) (03 July 2018)

BA & Anor v JA & Ors (female genital mutilation protection orders and immigration appeals) [2018] EWHC 1754 (Fam) (03 July 2018) | Children In Law | Scoop.it
more...
No comment yet.
Scoop.it!

Research Briefs

Reforming Care Proceedings: Summary Reports 2018

Reforming care proceedings 1: Court Outcomes

Reforming care proceedings 2: Children's...
more...
No comment yet.
Scoop.it!

Family Law Week: Law firm pledges funds in effort to save FDAC National Unit

Family Law Week: Law firm pledges funds in effort to save FDAC National Unit | Children In Law | Scoop.it
Home > News Law firm pledges funds in effort to save FDAC National Unit Call for other firms to donate A leading family law firm has been involved in discussions in an effort to save the Family Drug and Alcohol Court (FDAC) National Unit. The Unit could close in September because of a lack of funds despite being hailed by ministers and the judiciary as being the central hub of one of the most important developments in family law in recent decades. Only last month, England's most senior family judge, Sir James Munby, suggested that the prospect of closure was "profoundly disturbing". Hall Brown Managing Partner James Brown and Senior Partner Sam Hall recently met Nicholas Crichton, the retired district judge who helped establish the FDAC in 2008, and the Earl of Listowel, who is one of the system's most prominent parliamentary supporters. Describing the exchange as "immensely positive", Mr Hall said that Hall Brown had pledged £12,500 in each of the next three years towards the FDAC's annual £250,000 running costs. He called on 19 other family law firms to donate a similar amount. "We recognise the tremendously delicate nature of the work undertaken by the FDAC over the course of the last decade and the life-changing results which it has already yielded for many families. "Having listened in person to the concerns of Mr Crichton and Sir James about the potential consequences of such a service not being available, we decided that it was important to act. "We do not deal with the kind of cases which FDAC handles, cases which are highly specialised in nature. However, we and every one of our legal peers recognises how vital this work is. We are optimistic, therefore, that our proposal will be supported by other firms and the FDAC National Unit can be saved." Academic research has found that out of 90 families who had been through the FDAC system, almost half of mothers and one-quarter of fathers had stopped their substance abuse by the end of the process – a far higher success rate than in ordinary care proceedings. The funding crisis has emerged after the Department for Education stated that no further funding would be made available for the Unit, the body that supports local, existing FDACs and encourages the development of new sites. The Department has funded the Unit from its inception and has thus been essential to the expansion of the FDAC system from London to nine other localities. Mr Crichton said he was keen to explore the Hall Brown proposal. "Children belong in families – hopefully, their birth or extended families. What we have been able to do through the FDAC is increase the chances of that happening despite difficult domestic circumstances. "I and many others believe that the FDAC has made its mark and fully justifies its continuation. "Despite analysis showing not only that these courts change lives but save money too by reducing the future sums required to support the kind of families which we see, we find ourselves critically in need of cash. "I am grateful for Hall Brown's initiative and hope that it leads to a positive outcome and the saving of a valuable legal and social resource." Nagalro expresses its concerns Meanwhile, Nagalro has expressed concern that, without the National Unit to support, train and promote the ten current FDACs and to maintain consistency, they will simply be left to wither on the vine. The professional association for Family Court Advisers, Children's Guardians and Independent Social Workers said: "One by one, cash-strapped local authorities, encouraged by the withdrawal of central government support, will find that funds can be directed elsewhere. Without the co-ordination, training and promotional activities of the National Unit, it is unlikely that new FDACs will be set up. This is a tragedy for the families who are helped by the FDAC, a severe blow to the children and, in the medium to long-term will mean increased costs to the public. "The astonishing thing about this decision is that it comes without explanation and in the face of consistent research showing the benefits of the FDAC system and the dividends it provides to public finances. Parents who are assisted to come off drugs do not need to commit offences to fund their habit; the costs of prosecuting them and imprisoning them is saved. Some will get jobs and pay taxes. Children who can, at the end of the process, be safely rehabilitated to their parents' care do not cost the taxpayers foster care allowances." For the full statement from Nagalro, click here. 15/7/18   Keywords:FDAC
more...
No comment yet.
Scoop.it!

Williams and another (Appellants) v London Borough of Hackney (Respondent) - The Supreme Court

Case details...
more...
No comment yet.
Scoop.it!

Social Injustice and inequalities within the child protection and care systems Tickets, Thu, 16 Aug 2018 at 18:30

Social Injustice and inequalities within the child protection and care systems Tickets, Thu, 16 Aug 2018 at 18:30 | Children In Law | Scoop.it
Social Injustice and inequalities within the child protection and care systems - The impact of deprivation and austerity on local authority's children services and what we might do about it Speakers: Anna Gupta, Professor of Social Work, Royal Holloway University; Aijannah di Nisci, previously a...
more...
No comment yet.
Scoop.it!

Egeneonu v Egeneonu [2018] EWCA Civ 1714

Egeneonu v Egeneonu [2018] EWCA Civ 1714 | Children In Law | Scoop.it
Neutral Citation Number: [2018] EWCA Civ 1714 Case No: B4/2018/1315 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE FAMILY DIVISION Mr Justice Cohen FD13P02234 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18 July 2018 Before : LADY JUSTICE SHARP LORD JUSTICE HENDERSON and LORD JUSTICE PETER JACKSON - - - - - - - - - - - - - - - - - - - - - Between : LEVI NKEM EGENEONU and IJEOMA EGENEONU - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - The Appellant appeared in person Brian Jubb (instructed by Bindmans LLP) for the Respondent Hearing date: 18 July 2018 - - - - - - - - - - - - - - - - - - - - - Judgment Approved Lord Justice Peter Jackson: 1. On 1 May 2018, Levi Bernard Egeneonu, also known as Bernard Nkem, was sentenced by Cohen J to 18 months imprisonment for contempt of court. He has exercised his right of appeal and this court has today heard his appeal. Mr Egeneonu, who was represented by counsel at the committal hearing, appears today in person by his own choice. The background 2. The proceedings arise in this way. Mr and Mrs Egeneonu were married in Nigeria in 2001 and came to England, where Mr Egeneonu had already been living, in 2002. They have three sons, all of whom were born here. They are C (16), O (13) and I (11). In 2013, the family went to Nigeria on holiday. The mother was separated against her will from the children and has not seen them since. 3. Both parents then returned to England. On 30 January 2014, Russell J made the children wards of court and ordered Mr Egeneonu to arrange for their return. Instead, a week later he went to Nigeria and disengaged from the proceedings. On 6 March 2015, Newton J found him to be in contempt at a hearing at which he was represented and in which he participated by telephone: [2015] EWHC (Fam) 954. The breaches of court orders were, broadly: a) Obtaining travel documents to enable him to leave the UK. b) Leaving the UK and travelling to Nigeria. c) Breaching a non-molestation undertaking in March 2014 by phoning the mother and saying he would never return the children from Nigeria, and putting pressure on the mother to withdraw her wardship application by making threats to her and her family. d) Failing to produce the children and to return them to the UK by 14 February 2014. e) Failing to book tickets to effect the return of the children. f) Failing to attend three hearings in March 2014. 4. Sentencing was adjourned to allow Mr Egeneonu to arrange for the return of the children. He did not do this and on 8 May 2015 Newton J sentenced him to 12 months imprisonment. 5. Mrs Egeneonu sought to have Mr Egeneonu extradited and for that purpose argued before Sir James Munby P that Newton J's findings amounted to findings of criminal contempt. This was unsuccessful: [2017] EWHC (Fam) 43. 6. However, Mr Egeneonu returned to the UK and on 26 March 2017 he was arrested and imprisoned to serve the sentence imposed by Newton J. On 29 June 2017, he unsuccessfully attempted to purge his contempt. On 8 August 2017, Roberts J made orders requiring him to inform his relative Victor Egeneonu of certain matters designed to ensure the children's return. 7. While Mr Egeneonu's sentence was being served, Mrs Egeneonu applied for his further committal. That application was adjourned at his request on 30 August 2017 by MacDonald J ([2017] EWHC (Fam) 2451) and heard on 11-12 and 19 September 2017 by Mr David Williams QC: [2017] EWHC (Fam) 2336. He committed Mr Egeneonu to prison for a further period of 15 months. The charges proved related to: a) Harassment of the mother. b) Failure to attend four hearings. c) Failing to provide information or providing false information about the children's whereabouts. 8. On 10 November 2017, Cohen J ordered Mr Egeneonu to cause the return of the children to this country by 15 December 2017. 9. On 9 February 2018, Williams J (as he had become) ordered Mr Egeneonu to cause the return of the children to this country by 27 February 2018. The present committal application 10. On 28 February 2018, Mrs Egeneonu made a further application for committal on six counts. She alleged that Mr Egeneonu was in breach of the orders of Roberts J, Cohen J and Williams J, and that he had in three respects interfered with the administration of justice by providing false evidence. 11. On 21 and 23 March 2018, Williams J heard argument on whether Mrs Egeneonu should have leave to pursue the three counts relating to the interference with justice. He granted that permission and he declined to exclude the evidence of transcripts of telephone calls made by Mr Egeneonu from prison in June-August 2017. He refused Mr Egeneonu's application to purge his contempt. His judgment, delivered on 24 April and published on 6 June 2018, is to be found at [2018] EWHC (Fam) 1392. 12. The matter came before Cohen J on 26-27 April and 1 May 2018. Both parties were represented. The judge heard from them both and from one witness (the translator). A great deal of the evidence centred on transcripts of the telephone calls. Typically, in one call he was recorded as stating 'Let it be known that I do not want these children to come over here and I do not want these people to know their whereabouts.' 13. The judge found the following charges proved: 1. Failure to inform Victor Egeneonu of the matters required by the order of Roberts J. 2. Failure to secure the return of the children as required by Cohen J. 3. Failure to secure the return of the children as required by Williams J. 4. Causing the child C in August 2017 to write a letter to the court with the intention of misleading the court about the children's wishes and feelings. 5. Sending a false statement of a witness to the court in August 2017. 6. Making false written statements about the whereabouts of the children, his ability to secure their return and his relationship with Victor Egeneonu. 14. The judge reviewed the copious transcripts of the father's conversations. He rejected Mr Egeneonu's claims that the transcripts were inadequate, and described as absurd and fantastical his evidence that the calls were in some cases not made by him and in others did not refer to these children. He found that Mr Egeneonu was controlling the situation from prison and that he had the power to bring the children back, but in fact did not want them to return. He sentenced Mr Egeneonu to 18 months imprisonment on each count, to be served concurrently. This appeal 15. On 22 May 2018, Mr Egeneonu filed an appellant's notice. On 22 June, King LJ ordered that he be produced from custody for this hearing. On 26 June, this court granted legal aid to Mr Egeneonu so that he could continue to be represented by his former lawyers, but on about 10 July, Mr Egeneonu chose to represent himself. Mrs Egeneonu is represented today by Mr Jubb. 16. Mr Egeneonu's arguments are contained in a number of documents: his appellant's notice, a brief skeleton argument (6 pages), a skeleton argument (19 pages), a statement (20 pages) and a further submission provided today (8 pages). From these, I would extract the following grounds of appeal: 1. The children had not been unlawfully retained in Nigeria in 2013. 2. All counts but one (no. 4) were repetitions of matters for which sentence had already been passed in September 2017, creating double jeopardy. 3. The recordings of the conversations were improperly obtained and had at one point been said to be inadmissible by Williams J. 4. The translation was incompetent and lacked independence. 5. Williams J and Cohen J, both generally and in ignoring a Nigerian court order, showed racist bias. Cohen J should have recused himself. 6. As to count 1, he had obeyed the order to tell Victor Egeneonu that he wanted the children returned. 7. As to counts 2 and 3, he had no power to bring the children to England, given the attitude of the Nigerian authorities and family members. 8. As to count 4, the recording regarding this was misunderstood. 9. As to count 5, the statement had been signed by the person concerned. 10. The order was wrong and unjust. The case is based on fraud, violation of international justice and slavery. Mrs Egeneonu fraudulently claimed the children had been abducted in order to get UK benefits. The English court has no jurisdiction over Nigerian children. His imprisonment amounts to slavery. Decision 17. Having considered the documentation provided by Mr Egeneonu and listened to his submissions, I have concluded that his appeal is without merit and I would dismiss it. The judge had the clearest evidence that Mr Egeneonu was in flagrant contempt of the court's continuing efforts to secure the return of the children and/or their reunification with their mother. 18. A number of the grounds of appeal can be shortly disposed of: * It is not open to Mr Egeneonu to argue on this appeal that the children were not unlawfully retained in Nigeria in 2013, when the High Court has repeatedly ordered their return on that very basis. * Contrary to Mr Egeneonu's submission, the recordings were admitted by the interlocutory decision of Williams J, a decision that was not subject to appeal, and from which no appeal would have been likely to succeed. * Cohen J carefully considered the reliability of the recordings, to the perhaps unprecedented extent of hearing from the translator himself, and he was fully entitled to conclude that they were overall dependable. * There is no basis upon which we could depart from the judge's assessment of the evidence, and in particular his conclusion about Mr Egeneonu's ability to perform the orders. The recordings provided clear proof of the matters arising in the individual counts, for the reasons expressed in detail by the judge. The judge was entitled to conclude that any doubt about Mr Egeneonu's capacity to act was removed by his deliberate efforts to ensure that the orders were not obeyed. * The issue of a Nigerian court order is one that Mr Egeneonu has raised before. For example, in a letter from a Nigerian lawyer in January 2018, there is a reference to proceedings in Nigeria in 2016, and an order "in favour of Mr Egeneonu and the children". None of the many judges who have heard Mr Egeneonu has been persuaded that such an order could provide a genuine excuse for his disobedience of the orders of the High Court, and Cohen J was fully entitled to take the same approach. * The allegations of bias made against Williams J and Cohen J are groundless. Such allegations are another example of the bluster habitually employed by Mr Egeneonu. There was no basis upon which Cohen J could properly have recused himself. 19. I deal in a little more detail with Mr Egeneonu's claim that he is being repeatedly punished for the same contempt. That relies upon the argument that the abduction (which is anyhow denied by him) happened once, and can only be punished once. That argument is unsound, as was made clear by McFarlane LJ in Re W (Abduction: Committal) [2011] EWCA Civ 1196: "37. … As in the case of prohibitive injunctions, it must in my view be permissible as a matter of law for the court to make successive mandatory injunctions requiring positive action, such as the disclosure of information, notwithstanding a past failure to comply with an identical request. A failure to comply with any fresh order would properly expose the defaulter to fresh contempt proceedings and the possibility of a further term of imprisonment. 38. While such a course is legally permissible, the question of whether it is justified in a particular case will turn on the facts that are then in play. It will be for the court on each occasion to determine whether a further term of imprisonment is both necessary and proportionate." 20. These children are wards of court and the High Court is empowered to make whatever orders it responsibly considers to be in their interests. The fact that its orders have not been obeyed cannot deprive it of the power to make further orders, and if those orders are also disobeyed, it has its normal powers of enforcement. Once the punitive element of a sentence has been achieved, it will be a matter for the court to gauge whether making continued orders is likely to have a coercive effect: see Re W (above) per Hughes LJ at [51]. But where an order designed to secure the return of children has been properly made, the jeopardy in which a respondent to a further committal application finds himself is no more than the direct result of his deliberate decision to disobey the court's orders. 21. I also note the challenge made by Mr Egeneonu to the jurisdiction of the English court in relation to Nigerian children (in fact they have dual nationality). It can easily be seen that his original case since 2013 that the English court should never have been involved is without foundation. The English court clearly possessed jurisdiction from the outset. There will doubtless be cases (see e.g. Re W [2014] EWCA Civ 1101) where jurisdiction may be lost after lengthy, and even wrongful, absence. However, that was rightly not an issue before Cohen J. It is well-established (see Johnson v Walton [1990] 1 FLR 350 at 352D) that orders are to be obeyed and that arguments about whether they should or should not have been granted are no excuse for disobedience. 22. Lastly, Mr Egeneonu has not made any separate submission about the imposition of a custodial sentence and about length of his sentence, but since he is unrepresented, it is right for this court to review those matters. Having done so, I would approve the course taken by the judge. A custodial sentence is always a last resort, and (the maximum being two years on any one sentencing occasion) a term of this length must be reserved for the most serious cases. This is such a case. It involves the calculated separation of three children from their mother and a contemptuous disregard for court orders. Those who abduct children in this way must expect lengthy sentences if they are found to be in contempt of court. As it is, these children are currently without either of their parents. That is a tragedy, but it is one brought about by Mr Egeneonu and the solution to it lies, as it has always done, in his hands. 23. I would dismiss this appeal. Lord Justice Henderson: 24. I agree. Lady Justice Sharp 25. I also agree.
more...
No comment yet.
Scoop.it!

Applications for 3rd Six Pupillage

4 Brick Court Chambers is a long established specialist family law set based in Temple, London.  Chambers accepts instructions in all areas of family law but is known, in particular, for the skill and expertise provided in the area of public law Children Act proceedings in which the majority of...
more...
No comment yet.
Scoop.it!

A concerning consultation about sharing of information –

A concerning consultation about sharing of information – | Children In Law | Scoop.it
A recent communication from one of the Regionalisation Adoption Agencies to adopters, in a newsletter about a DfE consultation process (see below), has raised a number of concerns for a few of our members.
more...
No comment yet.
Scoop.it!

Failure | Child Protection Resource

Failure | Child Protection Resource | Children In Law | Scoop.it
I am grateful for this guest post from a parent. Failure Meaning -” lack of success, the neglect or omission of expected or required action.” It is essential and right that the Care system exists. It represents a failure on very many fronts that it has to. In most cases if a child enters care there will have been a catastrophic failure in one or more spheres – in a parent’s capacity to safely support their child at home for whatever reason, in services ability to support parents in their parenting role, in the State’s failure to invest in an environment where families (one of the key building blocks of society?) are supported. In most cases the care system is the safety net for children and young people when one or more of these failures have occurred. In my case, by the time my son entered care I was at my wit’s end. I had tried everything I could to get help for him and the effort brought me closer to my breaking point that anything I’d experienced before or since. I felt as though I was fighting for his life largely unsupported. I’m sure there were those who believe I was too interventionist because of my own fears and those who believe if only I’d been a better mother that there would not have been these problems. What I would say to the people who feel I was too interventionist is “I did not make the decisions by and large. My son and the various professionals who became involved because of my interventions to try and make things better for him, did.” I do not see my son now nor do I know how he lives, what he lives on, if his hayfever is affecting him at the moment, whether he eats, whether his clothes or shoes fit him, whether he has a dentist or a doctor and who he turns to when he needs help. I’m also aware that his former corporate parent is in the same position. Even if they did, as I was told again and again, they would feel their duties around confidentiality to him would mean that I could not be told anything about his wellbeing. In my dealings with professionals I only met one doctor who unambiguously crossed that ever present red line about sharing. I am very grateful to him for this because it often seemed to me that ‘not sharing’ with me was damaging for my son and needlessly turned into an exercise in inhumanity and cruelty to me. Is that the price of failure? If so whose? The thing that gives me comfort when I try to make sense of it all is knowing that I tried to do the right thing at the right time with the resources available to me in each and every situation. I do not have regrets on that front although I know I probably made some wrong moves along the way. I am hopeful that some of these may yet come right. No one knows what the future holds and life is nothing if not unpredictable. It is a better strategy to hope than worry when you cannot affect outcomes. With my very mixed experiences, I always feel nervous when I hear the case being made, generally by people involved within it in one capacity or another, that the Care system is inherently good. Do we want anyone’s child to have to experience what my son did, what our family did and then call it a good outcome because the Care system was there for him? Do we want any child or young person to face such an uncertain future, essentially alone and unsupported, as he does now that he is a Care Leaver? I want the best Care system possible for children like my son who enter it because whoever has failed or wherever failures have occurred, children affected pay the highest price and the failures are never theirs. They must never be failed further by a broken safety net nor a cut-price Care system. It is essential and right that the Care system exists. It represents a failure on very many fronts that it has to.
more...
No comment yet.
Scoop.it!

Family Law Week: Online note published on Habitual Residence and the Scope of the 1993 Hague Convention

Family Law Week: Online note published on Habitual Residence and the Scope of the 1993 Hague Convention | Children In Law | Scoop.it
Home > News Online note published on Habitual Residence and the Scope of the 1993 Hague Convention Available in English, French and Spanish The Permanent Bureau has published a Note on Habitual Residence and Scope of the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. The note is available in English, French and Spanish.  The Note clarifies the scope of the Convention and the concept of habitual residence and is aimed at promoting greater consistency in the determination of habitual residence in Contracting States through case scenarios. It also provides guidance on the prevention of, and response to, problems arising due to the determination of the habitual residence. For the English version of the Note, click here. 15/7/18
more...
No comment yet.