Children In Law
41.7K views | +0 today

Judge removes child from disabled mother over costs of care

Judge removes child from disabled mother over costs of care | Children In Law |
    This is the headline from the Daily Telegraph story. And rightly, we'd be appalled by this. If the reason for the child not being with mother is that it is too expensive to keep them ...
No comment yet.
Children In Law
legal issues about children in the uk
Your new post is loading...
Your new post is loading...!

Mother speaks of her fight to have the deceased father of her twins put on their birth certificate | Daily

Mother speaks of her fight to have the deceased father of her twins put on their birth certificate | Daily | Children In Law |
Grace Lewis, 26, from Romford, Havering, told FEMAIL of her sadness that her late partner Billy Townsend, 24, never got to meet their twins, now 18 months, after he was struck by a train and killed.
No comment yet.!

Family Law Week: New public law cases received by Cafcass fell almost 11 per cent in May

Family Law Week: New public law cases received by Cafcass fell almost 11 per cent in May | Children In Law |
Home > News New public law cases received by Cafcass fell almost 11 per cent in May Cafcass received a total of 1,441 new public law applications (involving 2,343 children) in May – 176 applications (10.8 per cent) fewer than in the same month the previous year. For the month-by-month figures for public law applications, click here. 14.6.20
No comment yet.!

SH (A Child) [2020] EWHC 1510 (Fam)

SH (A Child) [2020] EWHC 1510 (Fam) | Children In Law |
The mother's application for an extension of time to appeal, and for permission to appeal, against a child arrangements order. The mother said that the delay had been due to the shock caused by the order, and by her being physically unwell. The five grounds of appeal included that the judge had placed undue weight of the views of the child, and insufficient weight on factors such as the need for balance in the child's life, the views of the former caseworker, the risk of harm, and the fairness of the hearing. Williams J found that the explanation given by the mother for the delay was unsatisfactory. In his view, the judge's conclusion that the daughter's views were her own and should be given significant weight appeared to be unassailable. The criticism regarding the daughter's alleged need for greater balance was not supported. The Recorder was justified in departing from the caseworker's recommendations. The history of the case did not suggest an obvious risk of the child becoming estranged from the mother. Williams J was unable to discern anything which impinged upon the fairness of the process. He refused to grant an extension of time to appeal, and he refused to grant permission to appeal. Judgment, published: 16/06/2020 Topics Share
No comment yet.!

Family Law Week: Re A (Children) [2020] EWCA Civ 448

Family Law Week: Re A (Children) [2020] EWCA Civ 448 | Children In Law |
Home > Judgments Re A (Children) [2020] EWCA Civ 448 Disclosure of material to the police. Court of Appeal confirms that Re EC remains good law. In respect of the Re EC factors, it is impossible to place the factors in any order of importance; it will vary from case to case. Background In care proceedings, HHJ Redgrave made findings in respect of brain injuries caused to J by one of his parents.  The fact finding judgment was disclosed to police pursuant to FPR PD12G. The parties thereafter agreed to the disclosure of an extensive list of documents, including the expert medical evidence and statements of family members.  Agreement could not be reached in respect of five documents: two narrative statements by each parents and the guardian's note of the accounts given to her by the parents.  At a CMH, in which a number of issues were considered, the court gave a brief ex tempore judgment and allowed disclosure of the five documents.  During submissions, the court was referred to and applied the EC Checklist  (Re EC [1996] 2 FLR 275).  HHJ Redgrave granted permission to appeal to the father.  The court and parties were unaware of the Court of Appeal decision in Re M (Children) [2019] EWCA Civ 1364 in which it was submitted to the Court that the EC checklist set the threshold for disclosure too low. The Court decided that Re EC remained 'fit for purpose'.  Appeal King LJ gives the lead judgment.  She observes that, in Re M, McFarlane P wholly endorsed the continuing role of the Re EC factors.  If follows that Re EC remains good law and it is implicit that the Court of Appeal in Re M rejected the submission that the bar for disclosure was set too low in Re EC. King LJ made general observations about applications for disclosure: - These are decisions taken by a judge in the context of a trial of factual issues with which he/she will have become particularly familiar. The Court of Appeal is most reluctant to interfere with judge's decisions made in such circumstances; - They are dealt with at case management hearings, which often require decisions to be made on a number of issues under pressure of time.  Save in exceptional circumstances, the judge's ruling will be by way of a short, ex tempore judgment. Judges are assisted in that exercise by the Re EC factors. The father appealed on three grounds, each of which was rejected, as follows: (1) The judge erred in law in approaching the issue of confidentiality of the evidence on the narrow basis of the confidentiality of the child's identity rather than the wider basis of confidentiality that arises from care proceedings heard in private. King LJ notes the importance of reading the ex tempore judgment as a whole. It was clear from so doing that the judge had in mind the broad concept of confidentiality. (2) The judge erred in law by treating as broadly identical the public interest considerations which arise in respect of disclosure of material from police investigations into care proceedings and disclosure from care proceedings into police investigations.  King LJ determined that the judge did not conflate the two directions of disclosure.  Her specific application of the Re EC factors confirmed that she applied the correct test. (3) The judge conflated the arguments that disclosure would compromise the parents' right against self-incrimination with whether or not s.98(2) CA 1989 confers a right to silence. On behalf of the guardian, it was submitted that the trial judge was aware of the meaning of self-incrimination and that it is different from right to silence, but rightly factored in the "evidential reality" of the case, conceding that no s.98(2) warning had been given to the parents.  [King LJ notes, for completeness, that failure to give a s.98 warning is not determinative of an application for disclosure [Re X and Y (Disclosure of Judgment to Police) [2015] 1 FLR 1218]]. On behalf of father, it was submitted that the documents fell into a middle ground, being neither incriminating nor valueless and, in such cases, the court should be particularly careful not to allow disclosure by default. The court held there is no need to add such a gloss to the Re EC checklist. The judge properly applied factor 7, considering the gravity of the offence and the relevance of the evidence in relation to it. Decision King LJ highlighted and endorsed the approach of Swinton Thomas LJ in Re EC: it is impossible to place any of the factors in any order of importance; the importance of the factors will vary from case to case. There is little confidentiality to lose in circumstances where the police have already received the detailed finding of fact judgment together with all the medical and other evidence. What is left is the parents' inconsistent accounts. They are relevant to the police investigation even though they cannot be used as evidence. On any proper application of the Re EC checklist, an order for disclosure was inevitable. Appeal dismissed. Summary by Victoria Roberts, barrister, Coram Chambers.  Read the full judgment of A (Children), Re [2020] EWCA Civ 448 on BAILII
No comment yet.!

Children's services' technology lessons during coronavirus

Children's services' technology lessons during coronavirus | Children In Law |
During coronavirus children's social workers have faced a changing environment that's sparked fears of digital injustices – but has driven creative practice
No comment yet.!

Childcare proceedings and autistic parents

Childcare proceedings and autistic parents | Children In Law |
A recent judgment incorporated a useful overview of how best to approach cases involving a parent with Autistic Spectrum Disorder and the reasonable adjustments which may need to be made, writes Anna Sutcliffe.
No comment yet.!

Childcare lawyer to swap council for independent bar

Childcare lawyer to swap council for independent bar | Children In Law |
A childcare lawyer at Reading Borough Council is to join specialist family law set Four Brick Court in August.
No comment yet.!

Family Court judge considers power summarily to dismiss findings sought by local authority

Family Court judge considers power summarily to dismiss findings sought by local authority | Children In Law |
The Family Court will determine allegations made by an unnamed local authority as to how a child came to sustain a head injury, Mr Justice MacDonald has ruled.
No comment yet.!

At what age can a child choose who to live with?

At what age can a child choose who to live with? | Children In Law |
How can mediation help?  Mediation can support separating parents to discuss matters, including arrangements for the children and help the parents to try and reach an agreement on practical issues such as where the children should live.  A mediator cannot provide legal advice and therefore you should always seek independent legal advice on any agreement reached. Mediation is not suitable for all cases, particularly where there has been domestic violence. What happens if you go to court?  Child arrangement orders  If necessary, you can make an application to the court for a child arrangements order. This will mean that a judge decides where the child will live with consideration of the child’s best interests, wishes and feelings.  The child’s age will determine how much influence they have on the judge in respect to their wishes and feelings. Generally speaking, a child who is 12 years of age/in their early teenage years will have more influence in respect to their wishes and feelings than a much younger child.  The majority of child arrangement orders are in place until the child turns 16 years old but they can be extended to 17 and 18 years old.  Residence orders If you have an order that states that the children live with you (formerly known as a residence order) this also means that you are able to take the children out of the jurisdiction of England and Wales for a period of up to 28 days without having to obtain the consent of the other parent.  You do not have this ability when you have an order that the children spend time with you. Is this process different between married and unmarried parents? The process is the same for married and unmarried parents, as long as the father is named on the birth certificate and therefore has parental responsibility and there is no dispute about this. What are the father’s options if he does not have parental responsibility?  If a father is not named on the birth certificate and is not married to the mother then he does not have parental responsibility automatically. The father has the following options to acquire parental responsibility without issuing court proceedings:  By marrying or becoming the civil partner of the mother Becoming registered as the child’s father (re-registering the child’s birth with the mother’s consent and as long as no father has been previously named) Entering into a parental responsibility agreement with the mother Becoming a formally appointed guardian If it is necessary to make an application to the court then a father can also obtain parental responsibility by obtaining the following: A parental responsibility order A child arrangements order in which the father is named as the person who the child/children with live with and therefore a separate parental responsibility order must be made A child arrangements order is made in which the children spend time with their father. The court must then consider whether it would be appropriate for a parental responsibility order to also be made. This article was first published on the Stowe Family Law website, and is reproduced with permission.
No comment yet.!

Child protection and social distancing during the pandemic

Child protection and social distancing during the pandemic | Children In Law |
A research project explores the impact of the pandemic on child protection practice and children and families.
No comment yet.!

Action for Children responds to a record rise in contacts to the NSPCC's Helpline about children impacted by domestic abuse during lockdown

Action for Children responds to a record rise in contacts to the NSPCC's Helpline about children impacted by domestic abuse during lockdown | Children In Law |
Musings of an English family lawyer.
No comment yet.!

'Some visits need to happen - we must have PPE for them'

'Some visits need to happen - we must have PPE for them' | Children In Law |
Professional Social Work magazine - 10 June, 2020. Share your COVID-19 experiences here. The realities of this pandemic hit me when I recently fell ill with COVID-19 symptoms. I am now fully recovered, but I was washed out for more than a week. The experience left me a little scared as I was unable to understand where I picked the virus from. I thought of all the home visits I had undertaken in different parts of England without PPE since December 2019. After my brief illness I decided I would obtain my own PPE to protect myself and the families I assess. In terms of current practice, initially I was reluctant to undertake assessments on Skype or Zoom/Whatsapp and telephone. I've done these before, particularly in overseas assessments prior to direct assessments, and found they were second best. I was worried once the pandemic was over my assessments may be seen as flawed in some way. But at the same time should I place my own health at risk by going into homes I did not know what I would expect? I carried out an assessment recently where I could not complete everything that was required because it had been impossible to assess one parent over Skype/Whatapp/Zoom. It was a case which was in pre proceedings where there were some serious issues of domestic violence. I had some difficult and complex questions to ask of the parents. Alongside this was a risk the child may be removed if proceedings were commenced. So the parents had an agenda to prolong the assessment and also not to cooperate. I was unable to interview one parent remotely as I knew they would say they were unable to hear or I had heard properly. So I had to recommend the outstanding work is completed after the lockdown in face to face meetings. This highlighted to me the real concerns for social workers where there are children placed in risky situations and how to monitor and ensure these children/babies are kept safe and at the same time social workers are kept safe. I am aware the correct PPE is not being supplied to all social workers. I was recently approached by a local authority. They told me gloves, mask, hand sanitiser and an apron were available, but not all social workers chose to use all these items. I felt it was important to utilise all of these items. But I also felt the message given to me was that not all this PPE was required and it was clear the senior manager was probably working from home and not aware of the real risks to health. So I have decided my practice is now as follows: I will start assessments remotely and after I have assessed the risk I will undertake home visits with PPE and take the appropriate social distancing in the home. I cannot see how I can complete assessments without the face to face meetings. I would say it was impossible to complete the assessments without these visits. So in some cases it may take longer to complete the assessments and each case will be decided on its own facts and the level of risks. Getting COVID-19 symptoms has made me realise how important it is to look after yourself and keep yourselves protected. But alongside this there are children and families that require face to face visits. It is important for this to happen to keep the children and young people safe and to provide support for their parents and family members. So full PPE must be made available and it is important there are no short cuts to this. There is no line of work which should require you to place your health at risk. It is very important to remember this. Also to remember the risks to black and ethnic minority communities, which appears to be greater. So please take care of yourselves and do not place your health at risk it is not worth it.   Dr Rukhsana Farooqi Independent Social Work Consultant. London Do you have experiences, thoughts or feelings of social work during the COVID-19 pandemic you would like to share with Professional Social Work magazine? Click here to find out how.
No comment yet.!

Coronavirus: Children's home has 16 Covid-19 positive tests

Coronavirus: Children's home has 16 Covid-19 positive tests | Children In Law |
Thirteen staff and three children at a Northampton home have tested positive since mid-May.
No comment yet.!

Family Law Week: New private law cases received by Cafcass in May 11 per cent lower than 2019

Family Law Week: New private law cases received by Cafcass in May 11 per cent lower than 2019 | Children In Law |
Home > News New private law cases received by Cafcass in May 11 per cent lower than 2019 Cafcass received a total of 3,407 new private law cases (involving 5,198 children) in May 2020 – 11.6 per cent (or 448 cases) lower than the same month the previous year. For the month-by-month figures, click here. From that page, a further link shows private law case demand and number of subject children by DFJ area. 14/6/20
No comment yet.!

Message from the President of the Family Division | Courts and Tribunals Judiciary

Message from the President of the Family Division | Courts and Tribunals Judiciary | Children In Law |
Message from the President of the Family Division...
No comment yet.!

The Family Court in Lockdown

The Family Court in Lockdown | Children In Law |
How has lockdown affected the Family Court? Gresham Law Professor Jo Delahunty QC chairs a panel of senior lawyers and journalists discussing the issues faced by family courts and by families during lockdown.
No comment yet.!

Council wins appeal over whether threshold for intervention in child care case was satisfied

Council wins appeal over whether threshold for intervention in child care case was satisfied | Children In Law |
A local authority has won an appeal over a judge’s ruling that her findings of fact in a child care case did not satisfy the threshold for intervention and that the proceedings should be dismissed.
No comment yet.!

Family President predicts “very radical reduction” in amount of time that courts afford to each hearing

Family President predicts “very radical reduction” in amount of time that courts afford to each hearing | Children In Law |
It is unlikely that anything approaching a return to the normal court working environment will be achieved before the end of 2020
No comment yet.!

Mother loses appeal over fairness of hearing where her shielding QC cannot be physically present

Mother loses appeal over fairness of hearing where her shielding QC cannot be physically present | Children In Law |
A mother has lost her appeal over a judge’s decision to continue a fact-finding hearing later this month in care proceedings in circumstances where her leading counsel cannot be physically present because she is required to shield from the COVID-19 infection.
No comment yet.!

One in five children living in hostels should be in care of local authorities – The Justice Gap

One in five children living in hostels should be in care of local authorities – The Justice Gap | Children In Law |
One in five children living in hostels and other supported accommodation should be in the care of local authorities because they are at risk of homelessness, according to the legal charity Just for Kids Law. The group argues new research has revealed a legal loophole which leaves children to fend for themselves in unregulated children’s homes. The law states that both local authority children’s services and housing services must provide housing for homeless children aged between 16 and 17. According to the charity, case law and guidance make clear that children’s services have the primary responsibility, which means that children who are homeless should normally be in care. However, councils have been housing children under the Housing Act 1996 and giving them a bare minimum of support. A child in care is entitled to regular contact from a social worker, financial allowances on turning 18, support from the local authority up to the age of 25 and priority access to social housing. Children not in care have no legal right to any other support other than a place to live and are given no support at all after they turn 18. Unregulated children’s homes are ‘dirty and unsafe’ and put children ‘at considerable risk’, according to Just For Kids Law. Ofsted do not inspect unregulated accommodation, where children may only receive a few hours’ support from staff per week and are forced to live alongside adults who are involved in alcohol or substance abuse. Approximately four out of 10 local authorities (134) responded to a freedom of information request. In a 12 month period ending April 2019, 1,010 16- and 17-year olds were housed without being taken into care. Based on that. JFK estimates that the figure across all local authorities would be approximately 2,585. Of these, 585 young people who were not in care were housed in unregulated placements on 31 March 2019. Based on this, the group reckons the figure across all local authorities would be 1,498. In February 2020, the Department for Education launched a consultation on unregulated accommodation after campaigners and MPs put pressure on the government which is currently open. Just For Kids Law have called for the law to be changed so that no child under 18 can be placed in unregulated accommodation and denied their right to be taken into care. ‘These forgotten children are the some of the most vulnerable in our society yet they are being left without the support they desperately need, neglected by the state,’ commented Enver Solomon, JFK’s chief exec. ‘It should never be acceptable for a child who has faced great adversity to be without a caring home. The government needs to urgently address the legal loophole that is allowing this to happen and ensure no child who is facing homelessness has to cope alone with minimal support.’
No comment yet.!

Family Law Week: Re E: When the Court is Charged with a Child’s Funeral

Family Law Week: Re E: When the Court is Charged with a Child’s Funeral | Children In Law |
Home > Articles Re E: When the Court is Charged with a Child’s Funeral James Netto, Senior Associate with Dawson Cornwell, considers the latest judgment on parental disputes concerning a child’s burial James Netto, Senior Associate Dawson Cornwell For any family, nothing can be more unspeakably tragic than the death of a child. For the family at the heart of the case of Re E (A Child: Burial Arrangements) [2019] EWHC 3639 (Fam), the immense sadness of the loss of their child was compounded not only by the child having been murdered by the mother's partner, but also by there being a dispute as to the child's burial arrangements. It was this latter question that came to be determined by HHJ Jones, sitting as a Deputy High Court Judge, in the Family Division. Facts The parents were never married, and resided in the West Midlands. Their daughter, E, was born in December 2015. The father was never registered on the child's birth certificate, and as such did not hold parental responsibility for her. The child resided with both parents until their separation in 2017. Shortly thereafter, the mother and child relocated to the West Country, where they lived with a six-year-old child from an earlier relationship, and with the mother's new partner, Mr C. In October 2017, the child was found dead at their home in suspicious circumstances. She was aged just 22 months old at the time. Following a lengthy trial in the criminal court, in March 2019, Mr C was convicted of E's murder and sentenced to a 20-year custodial sentence. Separately, the mother was convicted of causing or allowing the child's death, and she was sentenced to a three-and-a-half year sentence of imprisonment. The child's remains were kept in the care of the local coroner pending the conclusion of the criminal trials. Following the two convictions, the father wished to make arrangements for the child's funeral, but without parental responsibility, he was effectively excluded from doing so as the coroner refused to release the child into his care. Fearing that the mother might unilaterally seek to arrange for the child's funeral (and potentially for that funeral to take place in the West Country), the father brought proceedings before the Family Division, seeking injunctions against such action until the matter could be determined in full. The father also sought for a letter of administration to organise the child's funeral, and for a declaration of parentage. Whilst the issues of parentage and injunctions were ultimately determined by consent as the proceedings went on, the final, thorny question for the court to consider was who would be entrusted with the task of organising the child's funeral. What powers does the court have to settle a dispute of this nature? A dead body is not property or a chattel, and as such, cannot be disposed of by will.  The administrator or executor of the estate has the right to possession of (but no property in) the body (see Kay J in Williams v Williams [1882] LR 20 ChD 659), and indeed is charged with the duty to arrange for its proper disposal. Separately, funeral wishes in wills (unlike gifts such as money) are not legally binding, but may of course prove influential for any judge. In this matter, per s.7 Wills Act 1837, the child could not make a valid will, and so died intestate. Per s.46(1) of The Administration of Estates Act 1925, the child's residuary estate is held on trust for his father and mother in equal shares. No one else is entitled under her intestacy. This therefore opened the way for either of the parents to apply for a grant of letters of administration, permitting them to take charge of the child's funeral. The right to apply for a grant is governed by r.22 of the Non-Contentious Probate Rules 1987 ('NCPR'). Rule 22(1)(c) provides that: "Where the deceased died … wholly intestate, the person or persons having a beneficial interest in the estate shall be entitled to a grant of administration in the following classes in order of priority, namely: (a) the surviving husband or wife; (b) the children of the deceased and the issue of any deceased child who died before the deceased; (c) the father and mother of the deceased" Disputes between executors or administrators about the disposition of a body have generally been dealt with either in the manner of the resolution of a dispute between trustees, or as an application to displace the administrator of an estate. Disputes of this nature have typically been framed under one of three heads, namely: a. s.116(1) Senior Courts Act 1981: If by reason of any special circumstances it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this section, would in accordance with probate rules have been entitled to the grant, the court may in its discretion appoint as administrator such person as it thinks expedient. b. the inherent jurisdiction, see Anstey v Mundle [2016] EWHC 1073 (Ch), Hartshorne v Gardner [2008] EWHC 3675 (Ch) and Re JS (Disposal of Body) [2016] EWHC 2859 (Fam). c. to the extent it constitutes a separate head, r.27(6) NCPR: A dispute between persons entitled to a grant in the same degree shall be brought by summons before a district judge or registrar. The court should generally refrain from giving directions for the disposal of the body, but instead is tasked with resolving any disagreement about who may make the arrangements: see, for example, Anstey v Mundle. The use of s.116 SCA 1981 was doubted in Anstey, where the court determined a dispute concerning the burial of a body under the court's inherent jurisdiction. In cases where the inherent jurisdiction is engaged, the court is charged with carrying out a discretionary exercise, identifying, weighing and balancing the appropriate factors. As such, the court in Anstey considered the following factors as being pertinent to the dispute: 25.     "…one, the deceased's wishes; two, the reasonable requirements and wishes of the family who are left to grieve; three, the location with which the deceased was most closely connected; and, four, to quote the judgment [in Hartshorne v Gardner], 'the most important consideration is that the body be disposed of with all proper respect and decency and if possible without further delay'. I have concluded that in this case those are also the relevant factors which I should consider." What jurisdiction should hear this dispute? Disputes concerning the disposal of a body have been heard in all three divisions of the High Court; by way of example: Buchanan v Milton [1999] 2 FLR 844 (the lead case on s.116 SCA 1981) as determined by Hale J in the Family Division, Borrows v HM Coroner for Preston [2008] EWHC 1387 (Admin), [2008] 2 FLR 1225, as determined by Cranston J in the Queen's Bench Division, and Scotching v Birch [2008] EWHC 844 (Ch), as determined by Patten J in the Chancery Division. The matter of Re E was issued in the Family Division, in the light of the intertwining issue of the father's lack of parental responsibility. No issue was raised as to the jurisdiction of the court to determine a dispute of this nature. The issuing of proceedings in the Family Division further afforded the father public funding, which may not have been granted in other divisions of the High Court. The mother's locus A fundamental question for the court in Re E was to determine whether the mother could oppose the father's application, given that she had been found to have caused or allowed the child's death. This was determined by Moor J on 25 July 2020. Quite aside from a more generalistic, quasi-equitable argument, the issue of the mother's locus in this case was not a world away from that of Scotching v Birch. In Scotching, the mother killed her young son in the midst of a bitter court battle with the child's father. The mother later pleaded guilty to the child's manslaughter, denying murder on the grounds of diminished responsibility, and the court then came to determine the father's application concerning the child's burial. The court held that the father's wishes were to prevail, despite him having had no contact with his son for several years, and the mother and her other children wanting to bury the child elsewhere. Patten J in that case held that the mother had effectively forfeited her rights by killing her son and having been convicted of the child's manslaughter. In the present matter, Moor J however held that the mother did have locus to oppose the father's application in this case. In Scotching, the child had been killed by the mother, whereas in Re E, the mother had been found by the criminal courts to have caused or allowed the child's death. The mother had also not 'benefitted' from her crime, and as such was not barred from opposing the father's application The father's parental responsibility This application was framed not only as a dispute concerning the child's burial, but also as a dispute concerning the father's parental responsibility over the deceased child. At the time of issuing the application, it was not known whether the mother would defend this, which potentially risked the father from being barred from making an application under Rule 22 NCPR. Whilst the channel of the inherent jurisdiction and s110 SCA may have still been open to him, ultimately, the mother did not seek to oppose this declaration of parentage. If the mother had opposed, it may well have been open to the court to order a DNA test of the child posthumously, as was the case in Anderson v Spencer [2018] EWCA Civ 100. Thankfully, this was one issue settled by consent. Determination The mother objected to letters of administration for the father, stating that the father's arrangements were not respectful. The father had an extensive social media presence, on which he had been particularly vocal about the child's death and her funeral. As such, the mother alleged that if the father were to arrange the funeral, his proposals would draw attention to it, not least by reason of its location and the hearse selected. The mother also maintained that her proposals were more respectful and the safety risks would be reduced both to her and to members of her family. The mother also highlighted that she was not convicted of homicide and was not to be disqualified from obtaining a grant of administration. The father sought for sole letters of administration in his favour, asserting that he was a suitable person for a grant under Rule 22. Secondly, his proposals were said to be respectful and the mother's apprehensions unfounded. As the proceedings evolved, the parents had compromised on many issues, and he suggested that he was acting reasonably by providing assurances about withholding any information about the funeral to media and outsiders. Finally, the father averred that the mother's conviction and circumstances rendered her unsuitable for a grant of administration. In determining the dispute in the father's favour pursuant to s116, HHJ Jones found the following factors to be of ultimate relevance: 1. The unhappy circumstances of E's death. 2. The mother's conviction. 3. The custodial sentence imposed upon her and its practical impact upon her ability to fulfil her duties which she could only discharge with the assistance of a third party, namely, E's step-grandfather, or perhaps the grandmother. More pragmatically, the issue of how an incarcerated parent would be able to organise a funeral from prison was clearly one that the judge held as central in his eventual determination. Due to what the judge held to be the "special circumstances" of this case, and to facilitate the discharge of the duties of administration and to resolve the intractable intra-parental dispute remaining, the judge determined that it would be necessary and expedient to substitute the father for the mother under Section 116: "Where a child is taken from this world in her infancy, in the tragic circumstances of this case, where one surviving parent is incarcerated and hampered in the practical exercise of her duty as an administrator, what could be more obvious than the substitution of the deceased's second surviving parent able and willing to discharge this responsibility? The mother does not ask for a grant to a non-parent, and on what conceivable basis should I consider any alternative grantee, for example, [the child's] maternal step-grandfather or grandmother? This, I believe, would aggravate a situation which is already fraught, and, as indicated by Hayden J in Re K, whilst these third parties do in fact fall within Rule 22, they fall within a lower hierarchy of priority than does a birth parent." The judge refrained from micro-managing "the funeral arrangements which are so intimately connected with family life and in this instance by parental ties". The judge went on to comment that "public taste and convention in the organisation of funerals or cremations is constantly evolving, and a court should be slow to direct where or how a deceased would be buried… One can always envisage an extreme case where respect and decency was being totally disregarded and intervention might be required, but I have no reason to conclude that what is proposed by the father crosses that line." A dispute of this nature is almost inconceivably tragic, and the court is charged with undertaking a respectful but ultimately emotion-free analysis. It is not for the court to determine in detail how a child should be buried, but who is the more capable person to organise the child's funeral. In Re E, and much to their credit, many of the individual elements of the funeral arrangements had been agreed between the parents, which went on to be set out in the final order. However, where there was dispute, the court was able to find in the father's favour by determining that he was the best-placed to make arrangements for the child's funeral. Following a modest, private service attended by both parents and by members of the paternal and maternal families, the child was finally laid to rest in the spring of 2020, nearly three years after her murder. James Netto represented the successful applicant father in this matter 9/6/20
No comment yet.!

One council left suspending Care Act duties as authority subject to legal challenge returns to full compliance

One council left suspending Care Act duties as authority subject to legal challenge returns to full compliance | Children In Law |
Derbyshire council has returned to full compliance with the Care Act 2014 leaving just Solihull using emergency coronavirus provisions to suspend duties.
No comment yet.!

President expects return to normal court working environment may not be achieved until Spring 2021

President expects return to normal court working environment may not be achieved until Spring 2021 | Children In Law |
The President is now assuming 'that social distancing restrictions will remain in place for many months and that it is unlikely that anything approaching a return to the normal court working environment will be achieved before the end of 2020 or even the spring of 2021'. Cases that were adjourned in the need for fairness will need to be re-evaluated to take into account the longer timescale set for social distancing.
No comment yet.!

Family Law Week: Separated Parents and Covid-19: Child arrangements in quarantine times

Family Law Week: Separated Parents and Covid-19: Child arrangements in quarantine times | Children In Law |
Home > Articles Separated Parents and Covid-19: Child arrangements in quarantine times Lindsay Yateman and Naomi Lelliott, solicitors with Excello Law, discuss how separated parents can best manage child arrangements under the current lockdown requirements.   Lindsay Yateman and Naomi Lelliott, solicitors Excello Law. Dominic Cummings' now infamous road trip to Durham recently saw the nation wrangle with the rights and wrongs of how parents should manage childcare during the coronavirus pandemic. Yet Mr Cummings' travails seem small by comparison to the complexities faced by many parents raising children within separated families at present. While managing contact arrangements is never easy, the added dimension of the coronavirus pandemic has created additional uncertainty, while also raising the potential for conflict between parents. Even as the lockdown measures are gradually lifted, separated parents all across the UK are searching for guidance as to how best to manage access to children between different households. As a result, family lawyers have had to become conversant with the latest social distancing rules and guidance in order to more accurately advise their clients. Some parents are concerned about how their access rights are being impacted by the social distancing measures. Others are worried about the health risks of allowing a child to stay in another household – particularly if they also live with an elderly relative or vulnerable person. Some have already felt the economic impact of the lockdown and fear that maintenance payments will be adversely affected as the recession deepens. In our increasingly anxious post-coronavirus world, such uncertainties have inevitably generated friction, leading some parents to ask whether it really is possible to co-parent with your ex-partner at all. We have also now entered a somewhat unusual situation where, even within the United Kingdom, "cross-border" issues may arise. For example, when the stay-at-home guidance was first lifted for England, that was not the case in Scotland, Wales or Northern Ireland. In cases where one parent lives in Scotland, and the other in England, each will be subject to different social distancing rules. Parents living across the Scottish or Welsh borders therefore have two divergent sets of rules to contend with. These rules are complex and ever-evolving. Even something as simple as taking a child to play football in the park with friends can end up being a legalistic nightmare. For example, at the time of writing, people in England may exercise outdoors with up to five others from different households. In Wales, any number of people from two households may socialise. Meanwhile in Scotland, people from two households may exercise outside together, with an upper limit of eight. Of course, in all cases, people should stay two metres apart and practise good hygiene. For those left bereft by the cancellation of Wimbledon this year, playing tennis is currently permitted in England, but not across the border in Wales. Parents taking a child for a trip to the beach also have more limited options in Wales and Scotland, where families are advised not to travel more than five miles, while there is no such geographic restriction in England. Even within England, while schools opened in many areas on 1 June 2020, they remain closed in others. Schools in Scotland are set to remain closed until August, and then they will resume on a part-time basis, with a blend of classroom education and schooling at home. Since the devolved governments and councils hold widely varying views as to the propriety of returning children to school, it is no surprise that many parents will also hold differing views as to whether it is currently safe for their children to return to the classroom. One parent may take the view that continuing home-schooling until the end of term is the safest option, while another may fear that the child is falling behind in their education. Both views are perfectly reasonable and supportable by evidence. Anecdotally, it also appears that the nationwide enforced experiment in home-schooling has led at least some parents to the conclusion that their children are doing better in the home-school environment than they were in a formal school environment. Some are therefore now considering home-schooling their children permanently. Once again, we see that the pandemic has created new and fertile ground for potential disagreements between separated parents. The current trend towards the loosening of restrictions is not set in stone, of course. As the pandemic progresses, it may well be that stricter restrictions could be re-imposed where further outbreaks occur. Some epidemiologists are particularly concerned about a second peak of the pandemic later this year as we head into winter. Given this risk, the advice of the President of the Family Division, Sir Andrew McFarlane will continue to provide welcome clarity. Last March, Sir Andrew issued guidance on the social distancing rules contact arrangements for separated families as they applied during the strictest phase of the lockdown. This guidance assured practitioners and parents alike that children may move between homes, where it is safe to do so, while having consideration for the current public health rules and guidance. The guidance states unequivocally: "Where parents do not live in the same household, children under 18 can be moved between their parents' homes." While this guidance established a clear exception to the government's "stay at home" requirement, it is not the case that children must be moved between parental homes. Even in the context of today's more relaxed rules, the decision as to whether a child should move between households is ultimately for the child's parents to take. In so doing, they should of course sensibly assess the broader circumstances, including the child's present health, the risk of infection in the area, and the presence of any recognised vulnerable individuals in either household. In practice, this means that parents should generally be advised to continue to comply with a Child Arrangements Order (CAO) – provided that no one in either household shows signs of having contracted Covid-19 and once so doing does not create any unnecessary risks for vulnerable persons. If clients are in doubt about whether they should be concerned about particular symptoms, the NHS operates an online coronavirus symptom checker which provides a quick and easy way of assessing them. The NHS guidance remains that anyone with symptoms must self-isolate for seven days. Anyone who lives with a symptomatic person must also self-isolate for 14 days from when the affected person developed symptoms. The NHS says that self-isolation means not leaving the home and also not having visitors, "including friends and family – except for people providing essential care". Therefore, self-isolation will require a hiatus in contact during that period. An arguable exception to this rule could possibly apply in cases where the scheduled contact also involves the provision of essential care. Where one parent lives outside the UK, or where a child does, the government's new 14 day quarantine requirement for overseas visitors may have a significant impact. From 8 June 2020, new arrivals in the UK have been required to go straight to a place where they will self-isolate and not leave that place for 14 days. The government guidance states that, during this period, such persons "cannot have visitors, including friends and family, unless they are providing essential care." Those who fail to provide details of their place of self-isolation upon entering the UK will face fines of £100, and those who flout the quarantine requirement face a fine of £1,000 in England and Wales. This requirement therefore appears to mean that a parent coming from overseas to spend time with a child within the UK would have to isolate for 14 days before meeting them, unless isolating within the child's home. Even in that case, the person is required to "avoid contact with the people you're staying with and minimise the time you spend in shared areas". There are listed exceptions for leaving the place of quarantine for medical care where "you're going to the funeral of a close relative, or for other compassionate reasons". It is unclear that spending time with children would be covered by the catch-all phrase, "other compassionate reasons". The guidance also wisely permits people to leave the place of quarantine if, for example, "there's a fire at the place you're staying". The 14-day quarantine requirement does not apply to visitors from Ireland, the Channel Islands or the Isle of Man. Practical considerations  Sir Andrew McFarlane's guidance reminds parents of separated children that parental responsibility lies with them, not with the court. In practice, this means that where the normal arrangements are disrupted, parents should be advised to discuss matters constructively with the aim of agreeing a solution that works for everyone. For example, where the coronavirus restrictions cause the letter of a court order to be varied, clients should be advised to keep to the spirit of the order by making safe alternative arrangements for the child. This might, for example, involve a video call between the parent and child in lieu of meeting in person. This approach is in line with the guidelines, which state that if actual contact is stopped, alternative ways of ensuring the children are able to maintain a relationship with the other parent should be considered. Some families, by virtue of the litigation they are involved in, are unable to agree on what their children should eat for dinner – let alone what is best for them during a national crisis. Inevitably, in such cases, additional problems may unfortunately arise due to the existing parental conflict. If a client has tried to communicate with the other parent but cannot agree a way forward amicably, then ultimately, if they have sufficiently reasonable grounds for concern that for the child to move would be against the current public health advice, they may need to exercise their parental responsibility and vary the arrangement to one they consider safe. Child arrangements orders When the CAO states that a child has to spend time with the other parent, and a client who has parental responsibility feels that public health advice requires them to vary the arrangement then they may do so. If their actions are subsequently challenged by the other parent and questioned by the court they must be able to show that they acted reasonably and sensibly in light of official advice and regulations. If there is no CAO and the other side is denying access, the guidance remains that, wherever possible, clients should try to discuss matters with the other parent to see whether  they can find a way forward safely and positively. Should a client be prevented from seeing their child for a period of time and they feel this is unjustified, it may be necessary to make a Child Arrangements Application to the court to regulate the time. Consideration should also be given to other forms of dispute resolution, such as mediation, arbitration or collaborative law. Should the parent with whom the child lives say that the child is exhibiting symptoms of Covid-19, the self-isolation period should be observed, but following that the child would then be free to see the other parent. During the self-isolation period, the parent with whom the child lives with should allow other forms of indirect contact: regular Facetime, telephone calls or Skype. Negotiating change As practitioners, we can assist clients and their families in this difficult time by advising them to take a flexible and pragmatic approach. It can be wise to invite clients to put themselves in the other parent's shoes. Even if it is right for the safety of the family and the general public, it is still hard for any parent to be separated from their child. It may be prudent to suggest offering some additional time at a later date, or stopping short contact sessions and replacing them with video calls to minimise the amount of travel and exposure for the child and others within their life. If one parent prevents contact without negotiation, the other parent may well apply to the court to enforce the order. The judge will have to decide if the decision was reasonable in all the circumstances. Most family court hearings are happening remotely however a swift decision is unlikely. As with so many other issues, there is no right or simple solution. It is about what works for each family, ensuring the safety of everyone. This is an extremely difficult time for everyone. Our paramount concern must be the safety and welfare of any children involved, as well as our clients and those around them. The fallout from the pandemic has heaped additional stress on clients and their families. As family law practitioners, we can contribute to reducing this stress by working collaboratively and encouraging our clients to take a safe, pragmatic and understanding approach during this extraordinary event. That can perhaps be our small contribution to the wider national effort. 10/6/20
No comment yet.