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“Will you walk a little faster, said a whiting to a snail”

“Will you walk a little faster, said a whiting to a snail” | Legal In General | Scoop.it
An application (unsuccessful) to commit Mr Whiting for alleged breaches of an injunction made in the Court of Protection.
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Legal In General
Miscellaneous stories about the world of law
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England and Wales Court of Protection sets out rules for valid gifts to third parties | STEP

England and Wales Court of Protection sets out rules for valid gifts to third parties | STEP | Legal In General | Scoop.it
A group of test cases brought by the Office of the Public Guardian (OPG) has resulted in a series of clear rules that persons appointed as attorneys in England and Wales can use when deciding whether they can spend the donor's funds for the benefit of other parties.
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High court challenge over CPS’s ‘covert’ policy on rape cases begins – The Justice Gap

High court challenge over CPS’s ‘covert’ policy on rape cases begins – The Justice Gap | Legal In General | Scoop.it
A  legal action against the Crown Prosecution Service began in the High Court yesterday arguing that it had covertly introduced ‘a small cultural shift’ in terms of its approach to rape that has had ‘a butterfly effect’ leading to a marked drop off in cases charged. The End Violence Against Women Coalition, which claims that their action is supported by whistleblower evidence, believes that the policy change ‘discriminates against women and girls’ and is ‘a major failure to protect their human rights’. ‘It is appalling that such a change should be implemented at a time when more women than ever are coming forward and reporting this serious crime,’ the group argues. The coalition is being represented by the Centre for Women’s Justice (CWJ). ‘In the last two months our lawyers at the CWJhave been tirelessly building and finalising the case against the CPS and we are extremely confident in the evidence that has been amassed,’commented the coalition’s campaigns manager Rebecca Hitchen; adding that statistics released last week revealed the prosecution rate to be the lowest on record (as reported on the Justice Gap here). ‘Every day survivors of rape are being failed by a criminal justice system which appears to have effectively decriminalised rape,’ Hitchen commented. ‘We argue that CPS leaders have quietly changed their approach to decision-making in rape cases, switching from building cases based on their ‘merits’ back to second-guessing jury prejudices.’ Harriet Wistrich, the CWJ’s director,that they action was supported by ‘a large mass of compelling evidence from a range of sources, including expert statistical analysis, whistle blowing testimony, a dossier of 20 cases and accounts from police and frontline advocates’ illustrating ‘a small cultural shift at the top of the CPS has had a butterfly effect leading to the devastating changes’. The legal team claims to have a dossier of 21 cases where decisions have been made not to charge ‘despite compelling evidence’ and, in some cases, where themen were known to be violent and serial offenders. The group cites the case of Rebecca who was raped at knifepoint and held prisoner for two days by her boyfriend who was already known by the police to be violent. ‘Despite lots of evidence of violence against Rebecca, the CPS prosecutor dropped the case saying Whatsapp messages she had sent to placate her attacker could be misinterpreted by the jury,’ the group says. ‘I was told by the police that I had a really strong case – my rapist was known to them, and unknown to me he had a history of violence against previous partners, plus I had evidence of the attack. But a judgement was made about my physical reaction to being raped not being the right one, and the CPS dropped my case. I was denied my day in court and this man was able to walk free and not answer for what he did to me – and if he could do that to me, he could do the same to someone else.’ Rebecca
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Family Law Week: In the matter of Nasrullah Mursalin [2019] EWCA Civ 1559

Family Law Week: In the matter of Nasrullah Mursalin [2019] EWCA Civ 1559 | Legal In General | Scoop.it
Home > Judgments In the matter of Nasrullah Mursalin [2019] EWCA Civ 1559 Successful appeal against a committal order imposed upon a paralegal after an unauthorised disclosure of documents from the Family Court to the Immigration and Asylum Tribunal. The appellant was a member of Lincoln's Inn, and hoped to train and practice as a barrister. He was working as a paralegal for a firm of solicitors in Hounslow which specialised in immigration and family law under a principal. The appellant assisted in the preparation of a case in the Immigration and Asylum Tribunal ('the Tribunal') on behalf of a client of the firm, Mr M, and in doing so prepared and filed a bundle. It was said that the bundle included a number of papers from family proceedings involving Mr M's children. Pursuant to section 12 Administration of Justice Act 1960 and rule 12.73 FPR 2010 the disclosure of those documents would be a contempt of court unless the Family Court had given permission, which had not been sought or granted. Mr M's appeal was determined by a judge in the Tribunal who was satisfied the behaviour of Mr M's legal representatives fell a long way below that expected of solicitors, and requested a copy of his decision be forwarded to the Family Court in order that the relevant family judge could consider the position and whether contempt proceedings were appropriate or not. The case came before HHJ Moradifar. No notice of that hearing had been served on the appellant himself. The appellant had provided a statement after an earlier direction from a Recorder. Before the appellant arrived at the hearing the Judge indicated that if he wanted representation he was highly likely to give him the opportunity to find it. (A barrister at the hearing had said they were representing the appellant, the principal and Mr M but when it was pointed out they were in conflict the barrister said they were now representing Mr M.) After a very short adjournment the hearing resumed with the appellant present. The Judge set out to the appellant that he needed to ask the appellant to take the oath, there may be other questions of him, that this was potentially a very serious breach which may lead to committal and can carry a term of imprisonment of up to 2 years, and if it were proven or showed he had potentially lied under oath there may be a referral to the Attorney General's Office who may or may not decide to investigate charges of perjury. The Judge asked the appellant if he wanted the opportunity of seeking independent legal representation and advice first or wanted to proceed. The appellant said he wanted to proceed. The appellant gave evidence and was asked questions by the Judge. He agreed he was admitting a breach of court rules, under his principal's instructions. The Judge's ruling was that the breach was so serious it could only attract a custodial sentence, and he sentenced the appellant to imprisonment for 6 months, suspended for 6 months. The Judge directed the principal to report himself to the Law Society (meaning presumably the SRA). The appellant sought to appeal. He stated that he did not understand what was going on at the hearing. The appeal came before the Court of Appeal. Baker LJ, in a judgment with which Henderson and Coulson LJJ agreed, noted the Court had repeatedly stressed that committal proceedings were of the utmost seriousness and it was imperative that the strict procedural rules governing such cases must be complied with. In this case the consequences of the disclosure may not have been as serious as in other cases. Nothing he said should be interpreted as excusing the unlawful, unauthorised disclosure of confidential Family Court documents, however it was plain there were a number of procedural errors which inevitably led to the conclusion that the appeal must succeed: 1. It was unclear whether or not the hearing was conducted in open court. 2. It was clear the appellant was given no proper notice whatsoever that he was being accused of contempt of court or of the specific allegations against him. The warnings by the Judge about the consequences of a finding of contempt or the exchanges about legal representation were not anything like adequate to protect the appellant's rights. The proper course which should have been adopted at that stage was either (a) to have issued a reprimand to the principal who seemed to have been principally responsible for any unauthorised disclosure, or (b) if the Judge considered it merited committal proceedings, to have particularised the alleged contempt and then adjourned the hearing to enable the appellant to consider his position and obtain legal advice. 3. The failure to particularise the allegations led to the further defect that it appeared the Judge was never shown the specific documents from the family proceedings which had been disclosed to the Tribunal, so it was impossible for the Judge to gauge the seriousness of the alleged breach. 4. There was little sign the Judge considered the extent of the appellant's culpability. It did not seem to have occurred to the Judge that the principal may have been the real culprit. 5. The errors were compounded by the Judge's direction to the appellant to go in the witness box. He overlooked the fact that a defendant to an application for committal is not obliged to give evidence. The Court had no doubt that the appeal must be allowed and the suspended committal order set aside. It illustrated again the very great care which all courts have to take when dealing with allegations of contempt. The consequences of the infringement of the rules about contempt proceedings may be just as serious as the consequences of unauthorised disclosure of court documents: in this case it is possible the committal order might have prevented the appellant pursuing his ambition for a legal career. Summary by Victoria Flowers, barrister, Harcourt Chambers. You can read the full judgment of In the matter of Nasrullah Mursalin [2019] EWCA Civ 1559 on BAILII
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Time is running out to have your say on the family courts crisis

Time is running out to have your say on the family courts crisis | Legal In General | Scoop.it
A key consultation on children cases in the family court closes soon, yet the response rate from councils and social workers so far has been too low.
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Acronyms and initialisms in legal writing

Acronyms and initialisms in legal writing | Legal In General | Scoop.it
An acronym is a word or name composed of the first letters of each word of a title or description. For example, NATO is an acronym for North Atlantic Treaty Organisation. An initialism is an abbreviated name or description composed of the first letters of the full name or description, pronounced...
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Best of the blogs: Supreme Court special

Best of the blogs: Supreme Court special | Legal In General | Scoop.it
Weekly round-up of the top legal blogosphere posts...
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Family Lore: New by me this week on the Stowe Family Law Blog

Family Lore: New by me this week on the Stowe Family Law Blog | Legal In General | Scoop.it
Musings of an English family lawyer.
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Popularity of marriage in continued decline

Popularity of marriage in continued decline | Legal In General | Scoop.it
ONS survey reveals a decline in marriage from 51.0% in 2017 to 50.5% in 2018. What is causing this decline in marriage?
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The Practice of Law

In her final series of six lectures Jo Delahunty QC will discuss what it's like to work as a Barrister today, the impact of changes to legal aid, how responsive the Law is to changes in society, and diversity at the Bar.
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BPTC

BPTC | Legal In General | Scoop.it
The Lord Mansfield is our most prestigious scholarship and the Inn offers up to five of these awards, each carrying a minimum value of £20,000. Our Major Scholarships are our next most prestigious awards. The Lord Denning, Marchant and Tancred Scholarships are all offered as Major Scholarships. The Tancred scholarships are awarded by the Inn but the money for these awards is provided by the Tancred Foundation. All Minor Scholarships awarded by Lincoln’s Inn are offered at the same level. Apart from the minimum value of the Lord Mansfield Scholarships, the value of each award is calculated through a means test based on the applicants’ disclosed financial resources and obligations. A separate Means Testing Panel review applicants’ individual circumstances through the use of financial information provided with their Scholarship Application. Scholars awarded from 2018 will also benefit from reduced qualifying session fees (for 11 Qualifying Sessions) as well as free admission to the Inn and no call to the Bar fee. If you have any questions about the scholarships at Lincoln’s Inn, please visit our FAQ page. If you can’t find the answer you are looking for, please contact the Scholarships Coordinator, Thomas Hope below.
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‘Life to mean life’ for child killers under sentencing reform – The Justice Gap

‘Life to mean life’ for child killers under sentencing reform – The Justice Gap | Legal In General | Scoop.it
Killers of young children would never be released from prison under Boris Johnson’s sentencing reforms to ensure that ‘life means life’. According to a report in yesterday’s Sunday Telegraph, Downing Street would use the prorogation of Parliament to ‘relaunch the Prime Minister’s domestic policy agenda by unveiling a tough new approach to criminal justice’ and a new Sentencing Bill. ‘For the first time, murderers of preschool children will be subject to whole-life orders, while Mr Johnson’s administration is also considering increasing minimum tariffs for other types of killings,’the Telegraph reported. Ministers plan to ‘rip up’ Labour’s policy of prisoners becoming eligible for release at the halfway point of their sentences instead, it wants violent and sexual offenders to serve ‘at least two thirds of their full terms’.’ The changes mean rapists sentenced to an average of nine years will no longer be released from prison after four-and-a-half years, or even earlier if they spent time on remand,’ it continued. ‘Nearly 2,000 criminals could be affected.’ ‘Most people think all parties and the courts have lost the plot on sentencing. We agree with the public. We will act as quickly and aggressively as we can, given Parliament does not want to do what the people want on crime, just as it doesn’t on Brexit.’ A government source to the Sunday Telegraph The government is also apparently looking at ‘sobriety tags’ that monitor alcohol intake and were piloted by the Prime Minister when he was mayor of London forrepeat drunken offenders. Boris Johnson flagged his intention to clampdown on ‘soft justice’ in an editorial about drug dealer Luke Jewitt who spent (in his words) ‘a delightful day at a health spa’ on release during a four year sentence in his weekly Daily Telegraph column back in July (see pic). ‘You may have decided it was yet another example of our cock-eyed crookcoddling criminal justice systemand succumbed to the apathy of despair,’ he wrote.
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Family Lore: My posts this week on the Stowe Family Law Blog

Family Lore: My posts this week on the Stowe Family Law Blog | Legal In General | Scoop.it
Musings of an English family lawyer.
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Mediation in the Court of Protection | A nationwide pilot mediation scheme is being run from 1 October 2019, to evaluate the impact of mediation on Court of Protection proceedings.

Mediation in the Court of Protection | A nationwide pilot mediation scheme is being run from 1 October 2019, to evaluate the impact of mediation on Court of Protection proceedings. | Legal In General | Scoop.it
Mediation in the Court of Protection A nationwide pilot mediation scheme is being run from 1 October 2019, to evaluate the impact of mediation on Court of Protection proceedings. GET IN TOUCH Mediation is a voluntary process in which an impartial third party, a mediator, facilitates the resolution of a dispute with the aim of the parties coming to an agreement to narrow or settle their dispute. A mediator facilitates communication, promotes understanding, focuses the parties on their interests, and engages the parties in creative problem-solving to enable them to reach their own agreement. The aim of mediation The aim of mediating a dispute that has been issued in the Court of Protection is to explore whether the parties can reach an agreement about what is in P’s best interests, and put this before the Court for approval (so the agreement becomes a Court order), rather than proceed to a contested trial. This means that the parties must agree firstly, on the issues in dispute and secondly, about what information from the confidential mediation can be shared with the Court. HOW THE SCHEME WILL WORK The Pilot Scheme While mediation is used to resolve disputes where proceedings have been issued in the Court of Protection, there has been little research into the effectiveness of it. However, in 2017 initial research findings on CoP mediation in the UK resulted in a working group being set up with a view to establishing a COP mediation scheme. We anticipate that the scheme will run for around a year to eighteen months (start date 1 October 2019). It will be formally evaluated by academics at the University of Essex, led by Dr Jaime Lindsey. The evaluation has a clear set of objectives. Further Reading Scheme Guide Mediations under the scheme will be conducted in accordance with the scheme guide. Precedents There is a suite of precedents for use in mediations conducted under the scheme, and they can be found here. The pilot is not a formal Office of the Public Guardian, Ministry of Justice or HMCTS project. It is practitioner led. The Court of Protection, Office of the Public Guardian, the National Mental Capacity Forum, and the Ministry of Justice are aware of the project, and have been involved with it at different stages during its genesis. The project is designed to run alongside the OPG Mediation Pilot, which only applies to cases before they are issued in the Court of Protection. SCHEME EVALUATION Questions? If you have a general question about the pilot, please get in touch with Holly Mieville-Hawkins at Enable Law in the first instance. GET IN TOUCH
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Family Law Week: Register our Marriage campaigns for equality for unregistered faith marriages

Family Law Week: Register our Marriage campaigns for equality for unregistered faith marriages | Legal In General | Scoop.it
Home > News Register our Marriage campaigns for equality for unregistered faith marriages In an article on the Law Society's website, Siddique Patel, a solicitor at Shoosmiths specialising in Islamic family law, discusses the Register our Marriage campaign for equality for faith marriages. The campaign focuses on changing legislation, in particular, an update to the Marriage Act 1949. The Act provides that only three faiths have to register their marriages: Anglicans (Church of England and Wales) Jews Quakers. The ultimate objective of the Register our Marriage Campaign is to ensure that all religious marriages are legally registered to protect the family unit. The campaign has two aims: Raising awareness of the lack of legal protection for unregistered religious marriages Reform of the Marriage Act 1949 so all religious marriages must be registered under civil law. For the article, click here. 22/9/19
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Disability and domestic abuse

Disability and domestic abuse | Legal In General | Scoop.it
A high proportion of domestic abuse victims have a disability with unsuitable refuges and inadequate benefits some of the factors.
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Gregory & Anor v Moore & Ors [2019] EWHC 2430 (Ch)

Gregory & Anor v Moore & Ors [2019] EWHC 2430 (Ch) | Legal In General | Scoop.it
The husband died after being struck by a car in Ukraine, and had left no will. His estate was represented by his mother and brother, who claimed that the wife had been involved in the death, and brought a claim under the Forfeiture Act 1982. The wife applied for orders to strike out Ukrainian evidence relating to her movements prior to the death. Chief Master Marsh found that the court must be very cautious about excluding evidence that appears to be admissible before the trial. The Civil Procedure Rules provide the court with ample powers to ensure a fair trial. In this case he saw no compelling reason to exclude the evidence. Judgment, published: 25/09/2019 Topics Evidence Share
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I believed the Australian family court system was biased against fathers – then I found the rot at the core of it | Jess Hill | Opinion | The Guardian

I believed the Australian family court system was biased against fathers – then I found the rot at the core of it | Jess Hill | Opinion | The Guardian | Legal In General | Scoop.it
The system needs to be overhauled – but not by Pauline Hanson who seems to be driven by vengeance on behalf of her son...
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From Braveheart to #Bundlegate: 5 OMG moments from the Supreme Court's week in the spotlight

From Braveheart to #Bundlegate: 5 OMG moments from the Supreme Court's week in the spotlight | Legal In General | Scoop.it
The best of the action from Boris Johnson's legal reckoning...
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Lomax v Lomax – must parties consent to Early Neutral Evaluation process? | The Transparency Project

Lomax v Lomax – must parties consent to Early Neutral Evaluation process? | The Transparency Project | Legal In General | Scoop.it
In an appeal from a decision made by a family judge in an inheritance dispute, the Court of Appeal has ruled that the consent of the parties is not needed for a court to order them to submit their case to an ENE, or “early neutral evaluation”. So what exactly is an ENE, and how does it differ from other forms of alternative dispute resolution (ADR), including (as commonly used in divorce cases) FDR, or financial dispute resolution? The case is called Lomax v Lomax and the original judgment was by Mrs Justice Parker in May this year: [2019] EWHC 1267 (Fam). The Court of Appeal gave its decision in August: [2019] EWCA Civ 1467. The dispute The case concerns a dispute between relatives over a will. The claimant is the widow of the deceased, and one of the executors of his will, and is making a claim under the Inheritance (Provision for Family and Dependants) Act 1975 against her stepson who is also the other executor under his father’s will. As in most such claims under the Inheritance Act, as we shall call it, the widow believes she deserves more under the will than she is currently getting. The stepson, acting on his own behalf and that of other beneficiaries under the will, disputes her claim. The judge began by observing that Inheritance Act claims have much in common with financial remedy proceedings (in a divorce): “There are similarities in the relief that can be ordered: there is an element of discretion in the award; they usually concern family assets; there is often a family or domestic relationship; and they can give rise to deep emotions.” However, they are governed by the Civil Procedure Rules (CPR) and not by the Family Procedure Rules (FPR). That turned out to be a critical distinction in this case. Unfortunately, the judge made a bit of a meal of the case, taking 11 months to issue her judgment after being prompted by a note from counsel, in response to her initial draft order, to revisit her decision and then having to decide whether or not she could (spoiler alert, she could). But the nub of the case ultimately boiled down to whether the court could force the parties to submit to an ENE under the CPR in the same way as it could in a divorce case under the FPR, or whether it depended on the parties consenting to submit to the ENE themselves. What is an FDR hearing? Under part 9 of the Family Proceedings Rules (see para 9.17), an FDR hearing is a routine part of the process of determining financial remedies after a divorce. After a first appointment to define the issues in dispute, the second appointment is the FDR hearing, which provides an occasion for the parties to meet in person and negotiate a final settlement with the help of the judge. The hearing doesn’t usually involve anyone giving evidence, though the judge can look at all the information available, including any “without prejudice” offers made. The FDR hearing is itself without prejudice, meaning the parties are not forced to abide by anything they’ve offered or conceded in the FDR. But if they don’t reach a settlement in the FDR, the case will go on to a formal court hearing, before a different judge (who will not know about what was said or what happened in the FDR hearing). FDR hearings are provided for under the court rules, but there is nothing to stop the parties avoiding the need for it by themselves engaging in an alternative process, eg of mediation or arbitration, if it helps them achieve a settlement. The point of the FDR hearing is to avoid the cost and aggravation of an adversarial court hearing if that can be avoided, and to allow a judge to give the parties the benefit of an initial view of their case to prompt them (but not force them) into settling rather than taking the dispute forward. What is an ENE? Under rule 3.1(2)(m) of the Civil Procedure Rules the court, as part of its general powers of case management, may “take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case.” The overriding objective is that of “enabling the court to deal with cases justly and at proportionate cost” (see rule 1.1). An ENE is similar to an FDR hearing, in that it is designed to enable the judge to give the parties a provisional “without prejudice” view of the case and to enable them to consider the options of settlement rather than persisting with the dispute to a formal hearing. Was this a suitable case for an ENE? It was. At para 123 the judge observed that “this is a case which cries out, indeed screams out, for a robust judge-led process to focus on the legal and factual issues”. The claimant widow wanted an ENE but the defendant stepson didn’t, and the judge decided that, under the CPR, as there was nothing in rule 3.1 to say so, she could not order the parties to submit to it unless they both consented. Although there was nothing in the rules themselves as to the parties’ consent, there was a note in the “White Book” (as the big reference book containing the Civil Procedure Rules and accompanying commentary is generally called). This note said “The court’s decision whether or not to conduct ENE is not dependent in any way on the consent of the parties. It is simply part of the court’s inherent jurisdiction to control proceedings. However, if all parties seek ENE, the court will usually give directions for it unless it decides that ENE would not be appropriate in that case (see, for instance, the guidance given in the Chancery Guide 2016…)” This appeared to have been derived from the judgment of Mr Justice Norris in an earlier case called Seals v Williams [2015] EWHC 1829 (Ch) which had prompted the change in the rules introducing ENEs in the first place. However, the guidance in the Chancery Guide on Chancery FDR (described as a form of ADR or alternative dispute resolution) appeared to conflict with the view expressed in the note by saying “The Court will not direct Chancery FDR unless all the parties agree to it.” It also states that ENE may be provided by third parties but that “in appropriate cases and with the agreement of all parties the court will itself provide an ENE”. This conflict in the guidance combined with the lack of clarity in the rules led the judge to decide she could not order an ENE in this case, much though it was needed. The Court of Appeal ride to the rescue While Mrs Justice Parker struggled with a lack of clarity in the rules and the lack of “a clear route to compulsory FDR in appropriate civil proceedings” such as those under the Inheritance Act, the Court of Appeal seemed to have no such difficulty. Having pointed out that commentary in either the White Book or court guides such as the Chancery Guide could not be determinative of what was said in the Rules, Lord Justice Moylan, giving the main judgment, said (para 32): “I see no reason to imply into sub-para (m) [ of rule 3.1(2) of the CPR ] any limitation on the court’s power to order an ENE hearing to the effect that the agreement or consent of the parties is required. Indeed, in my view such an interpretation would be inconsistent with elements of the overriding objective, in particular the saving of expense and allotting to cases an appropriate share of the court’s resources…” Comment Claims under the Inheritance Act are routinely heard in the family courts, and as the judge observed they have many similarities with divorce cases where there is a dispute over who gets what when the money is divvied up. So it makes absolute sense that this decision effectively puts the ENE on a similar footing to the routine FDR hearing in divorce cases. The only difference is that in civil cases the ENE is available as a case management option were the court decides it would be useful, whereas in divorce cases it is now a routine part of the case management process. In both regimes, the purpose is to try to limit the need to use up valuable court time on an often emotionally charged dispute that could be settled outside court. But as the Court of Appeal made clear in this case, there’s no question of depriving people who are really determined to have their day in court of the chance to do so. It’s just that they can’t achieve that without attempting to settle first, with the help of the judge. Nor does it deprive the parties of opting for ADR or mediation, outside the court process (although any settlement reached through ADR or mediation can then be brought to the court for approval by way of a consent order.) It’s unfortunate that the terminology is different in different courts, and the guidance appears to be confused. Hopefully, that will now be clarified, as the judge hoped, in the light of the Court of Appeal’s very clear decision. Since you’re here… We have a small favour to ask!  The Transparency Project is a registered charity in England & Wales run largely by volunteers who also have full-time jobs. We’re working hard to secure extra funding so that we can keep making family justice clearer for all who use the court and work within it. We’d be really grateful if you were able to help us by making a small one-off (or regular!) donation through our Just Giving page. And if you’re a firm of solicitors or a barristers chambers who finds what we do useful, please consider sponsoring us, like the other organisations listed on our sponsorship page. Thanks for reading! Featured image via Shutterstock.
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UK's first Domestic Abuse Commissioner announced as government pledges to tackle crime

UK's first Domestic Abuse Commissioner announced as government pledges to tackle crime | Legal In General | Scoop.it
Nicole Jacobs named as government’s designate Domestic Abuse Commissioner...
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Family Law Week: UK's first Domestic Abuse Commissioner announced

Family Law Week: UK's first Domestic Abuse Commissioner announced | Legal In General | Scoop.it
Home > News UK's first Domestic Abuse Commissioner announced The Home Secretary has announced Nicole Jacobs as the designate Domestic Abuse Commissioner. Ms Jacobs was the former Chief Executive Officer at charity Standing Together Against Domestic Violence and has more than two decades of experience working to reduce domestic abuse. The role of Domestic Abuse Commissioner will lead on driving improvements on the response to domestic abuse in the UK, championing victims and making recommendations on what more should be done to better protect victims and bring more offenders to justice. The Home Secretary Priti Patel will also co-chair a roundtable with the Secretary of State for Justice, Robert Buckland, to listen to the experiences and concerns of victims of sexual violence and to understand better what barriers could be preventing victims from engaging with the criminal justice system. 19/9/19 Keywords:domestic abuse
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Inquisitorial inquests and barrister-blaming

Inquisitorial inquests and barrister-blaming | Legal In General | Scoop.it
Families have no automatic right to legal aid at inquests where the state may be implicated and legal aid is means tested. Thus at many such hearings, the family fends for itself while culpable public bodies are represented at taxpayers’ expense. In 2017, a series of independent reports called out this unfairness and demanded an extension of legal aid. The government consulted and families confided concerns that most inquest barristers will recognise: ‘It can seem as if the Government has unlimited lawyers at its disposal and that it takes advantage of this, leading to “inequality of arms” at inquests. There is also the perception that the focus of public bodies can be on minimising or denying what went wrong and handling reputational damage, rather than trying to get to the bottom of what happened.’ Final Report: Review of Legal Aid for Inquests (‘the Report’) was published in February 2019. It gave these concerns short shrift. The headlines are: Lawyers for public bodies are helpful, indispensable and will not be limited. Lawyers for families can behave badly and more are not required. The duty of candour is working well but we will tell public bodies about it again. There will no increase in legal aid. Tied hands? Delawyering is rejected ‘Delawyering’ – reducing lawyers for public bodies, not eliminating them – was considered but rejected. (Do read paras 184-202 of the Report, ‘Making sure inquests remain inquisitorial’) This was because: ‘It must be right that, for example, police or prison officers have representation at inquests where there is the potential for their job to be at risk.’ Three points: In such a rare situation, the family’s need for equality of arms would be greater, not smaller, than it would be if the lack of care were not potentially gross. Without representation the family cannot be satisfied that any wrongdoing has been properly explored or the individual held to account. Second, the situation should not arise. In compliance with its duty to help the coroner to get to the truth, the employer ought to have concluded a comprehensive investigation, disclosed the report to the coroner and family, and taken any necessary disciplinary action long before the inquest commences. Finally, as the Report emphasises, coroners ‘do not apportion blame or determine either criminal or civil liability’. On the government’s own reasoning, inquests do not jeopardise jobs. "Amazing how the barrister who appears for a public body one day can understand and assist the process, and yet undermine it and be inappropriate when she represents the family the next." The Civil Service Management Code is a further impediment to ‘delawyering’. It contains ‘a commitment to provide staff called as a witness at an inquest with legal representation’ and thus, murmurs the government, ‘there is little that we can do to reduce the number of lawyers who represent public bodies at inquests’. What is the plan? The government’s plan is to neutralise the continuing unfairness for unrepresented families of unlimited lawyers for the state with… ‘a protocol of key principles’. Public bodies and their lawyers are to sign this and then, wand-like, it will ‘make sure that they assist the coroner in finding the truth of what happened’. Except that on its own, it won’t: only financial penalties for non-compliance could work such magic. And as if a protocol wasn’t enough, there’s more: clearer guidance on exceptional case funding, a simplified Guide to Coroner Services, new leaflets covering post-mortems and arrangements for viewing and returning bodies and possible leaflets on deaths in prison and mental hospital are all in prospect. Why no more lawyers for families? Money would seem the obvious answer since the Report estimates that the cost of a level playing field would be a further £30-70 million. But the Report doesn’t go down that road, rather it goes in for barrister-blaming. The bad news is that in some inquests, particularly those in which an arm of the state may have been involved in the death, proceedings: ‘can become adversarial with inappropriate behaviour from lawyers’. But the good news is that: ‘public bodies generally (the NHS, HMPPS etc) understand the inquisitorial nature of inquests, and that their lawyers’ main duty is to assist the coroner as much as possible’. What is an inquisitorial style anyway? Who are these inappropriate, unhelpful lawyers who don’t get that inquests are inquisitorial? Stand up anyone acting for families. Apparently, such has been the level of complaint by coroners to those gathering evidence for the Report, that the Ministry of Justice, Solicitors Regulation Authority and Bar Standards Board have decided to provide the judges with training on ‘the behaviour of counsel and generally controlling the courtroom’ and the inquest Bar is to be re-educated in the correct, inquisitorial advocacy style. That is because of the feedback obtained during the Report’s review process: ‘When people raise concerns about inquests becoming more adversarial they mean that the approach adopted by lawyers representing those concerned with the death (known as ‘interested persons’) is more like that of the prosecution and defence in a criminal trial, which might be characterised as point-scoring – rather than assisting the coroner to get to the truth – and that this is having an adverse impact on bereaved families.’ Frustratingly, the inquisitorial style isn’t sketched out (although the use of appropriate language when dealing with vulnerable people is mentioned). The Report mentions an MOJ summer conference on the issue, which hasn’t yet materialised. Meanwhile we are left to ruminate. It can’t mean a style that is polite, appropriate and unoppressive because an advocacy style that fails to conform to that description is already unacceptable within an adversarial system. Equally clearly, it can’t involve a prohibition on closed or leading questions: there are no parties at an inquest and it is the coroner, not the interested parties, who call the witnesses. Whilst it’s all ‘questioning’ in an inquest (not examination and cross-examination) some inquests do require the coroner to determine which of two expert opinions to prefer and/or to resolve one or more central disputes of fact. And advocacy that, where necessary, enables the proper testing of disputed evidence is essential in a fair inquisitorial system. The Report arrived at the fabulously Alice in Wonderland belief that at inquests, family barristers are so bad that it’s really, truly, deeply better for the bereaved not to have them at all. You see: ‘a significant extension of legal aid could have the unintended consequence of undermining the inquisitorial nature of the inquest system’ and ‘it could also reinforce the commonly held misconception that an inquest’s role is to apportion blame, as opposed to finding fact and learning lessons.’ Amazing how the barrister who appears for a public body one day can understand and assist the process, and yet undermine it and be inappropriate when she represents the family the next. Whilst the Bar Standards Board confirms that it has been approached by the MOJ to consider how to ensure that barristers engaged in inquiries act appropriately and in line with the BSB Handbook, a BSB spokesperson told Counsel magazine: ‘We continue to encourage the MOJ to bring to our attention specific concerns that they, or the Chief Coroner have, and when those are received we will consider what appropriate regulatory action should be taken in the light of that information.’ "The Report arrived at the fabulously Alice in Wonderland belief that at inquests, family barristers are so bad that it’s really, truly, deeply better for the bereaved not to have them at all." Were coroners’ complaints really about a very tiny handful of zealots who could start an argument in an empty courtroom, the Report should have said so and unnecessary training should not be funded. If there is a more widespread problem, then the Report should have asked why. If your client can’t get legal aid so you have to work pro bono or on a CFA, if – because of funding problems – you’re instructed late, and if you’re up against unlimited lawyers for state actors whose clients are not assisting with the truth-finding remit as much as they might, in front of a coroner who has set too narrow a scope and/or won’t call the witnesses the family wants to hear from or allow them an expert, and you know that the appeal mechanism is beyond your client’s reach because there’s no legal aid for judicial review either, you might just get a little testy. A centralised coroner service The Report is a missed opportunity to delawyer inquests and use the costs saved to fund equality of arms. One way would be a centralised coronial service and these requirements: Public bodies provide coroners with a public report, contributed to by the family and underpinned by statements from those involved, that states whether the death was avoidable and caused by any lack of care on the public body’s part. Where the report(s) identifies an avoidable death and all its causes, a brief inquest that does not reinvent the wheel. Where a fuller inquest uncovers facts and wrongdoing that should have been but were not identified by the report(s), the reporting of that failure and imposition of a financial penalty. Meantime this is where inquests are at: lawyers for public servants, leaflets for the bereaved. Katie Gollop is a QC at Serjeants’ Inn chambers specialising in healthcare law. Currently working on the Infected Blood Inquiry and best known for representing the hospital that treated Charlie Gard, she is regularly instructed in complex inquests and negligence claims. See also ‘Legal aid funding at inquests’, Matthew Hill, Counsel, June 2019
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