Legal In General
16.7K views | +0 today
Follow
 
Scooped by Jacqui Gilliatt
onto Legal In General
Scoop.it!

"You're going to fight THAT?"

"You're going to fight THAT?" | Legal In General | Scoop.it
I have had on my mind recently the old-fashioned notion of Trial by Combat, where one could elect a champion to fight on your behalf, and if your champion won, then you would win your case. Trial b...
No comment yet.
Legal In General
Miscellaneous stories about the world of law
Your new post is loading...
Your new post is loading...
Scooped by Jacqui Gilliatt
Scoop.it!

Exclusive: Purpose-built court building reopens - as a film set | News

Exclusive: Purpose-built court building reopens - as a film set | News | Legal In General | Scoop.it
Former Blackfriars Crown Court is awaiting redevelopment following its sale in 2019.
No comment yet.
Scooped by Jacqui Gilliatt
Scoop.it!

Covid and the courts: 'Grave concerns' for justice, warn watchdogs

Covid and the courts: 'Grave concerns' for justice, warn watchdogs | Legal In General | Scoop.it
A pandemic backlog of 54,000 crown court cases could have a lasting effect on justice, watchdogs warn.
No comment yet.
Scooped by Jacqui Gilliatt
Scoop.it!

Mental Capacity Report - January 2021 | | Barristers' Chambers

Mental Capacity Report - January 2021 |  | Barristers' Chambers | Legal In General | Scoop.it
Welcome to the January 2021 Mental Capacity Report.  Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: vaccination; life-sustaining treatment decisions and the limits of...
No comment yet.
Scooped by Jacqui Gilliatt
Scoop.it!

A mother abroad and a family dispute – Part 2 –

A mother abroad and a family dispute – Part 2 – | Legal In General | Scoop.it
By Daniel Cloake, 19 January 2021 As a follower of the Open Justice Court of Protection Project on Twitter I took advantage of their daily publication of upcoming Court of Protection hearings and e-mailed in my request to observe this case.
No comment yet.
Scooped by Jacqui Gilliatt
Scoop.it!

Justice hit by Covid wave in courts and jails | News | The Sunday Times

Justice hit by Covid wave in courts and jails | News | The Sunday Times | Legal In General | Scoop.it
The criminal justice system is facing its biggest crisis of the pandemic as soaring numbers of infections tear through prisons and the courts.There were confirmed Covid outbreaks in 76 of England and...
No comment yet.
Scooped by Jacqui Gilliatt
Scoop.it!

Family Law Week: New rules for legal practice: guidance for legal professionals

Home > News New rules for legal practice: guidance for legal professionals The Ministry of Justice has published a webpage bringing together guidance for legal professionals about what they need to do from 1 January 2021. The page includes guidance for legal professionals about family law disputes involving the EU, published on 30 December 2020. For the guidance page, click here. For a page bringing together guidance for people who are involved in UK-EU cross-border family law disputes and explaining what needs to be done from 1 January 2021, click here. 17/1/21
No comment yet.
Scooped by Jacqui Gilliatt
Scoop.it!

Domestic Abuse Appeals – the warm up act? | The Transparency Project

Domestic Abuse Appeals – the warm up act? | The Transparency Project | Legal In General | Scoop.it
Starting tomorrow, the Court of Appeal will consider four conjoined appeals where, it is said, the court’s approach to the handling of allegations of domestic abuse was wrong. There is significant interest in those appeals, and various journalists and reporters will be ‘attending’ – including George Julian (who will be live tweeting), and hopefully a tag team of other TP’ers. We expect that we too will live tweet, and will in due course publish some sort of write up. It is expected that the Court of Appeal will be invited to issue some guidance – but whether it will take that invitation and what it will say remains to be seen. The last time there was a conjoined appeal (also 4 cases as it happens) on the topic of domestic abuse was the seminal case of Re L (L & Ors (children), Re [2000] EWCA Civ 194), now unbelievably over 20 years old – back in the olden times when we talked of domestic violence rather than domestic abuse (and the phrase ‘coercive and controlling behaviour’ (‘CCB’) was a mere twinkle in the eye). Much has changed and yet, many would say, much remains the same. This judgment from Mr Justice Hayden, published at the back end of last week, traverses some of the issues we expect to be touched on later this week, and has something of the feeling of a warm up act : F v M [2021] EWFC 4. Hayden comprehensively sets out the framework for consideration of allegations of CCB before politely declining an invitation to issue guidance, no doubt mindful that there may be a rare opportunity for such guidance to be issued by his superior judges in coming days. And then he exits stage left to make room for the main act : the Lords and Lady Justices of Appeal. Domestic abuse is not entertainment of course. It’s pretty grim stuff and it has a really serious impact on its victims, be they adult or child. It does matter that these cases are ‘done’ properly. There is a current and persistent worry that issues of domestic abuse (including but not limited to CCB) are not being properly handled by the family courts, and there is an understandably high degree of interest in the topic – many hold hope these appeals may change something that so far endless reviews and media reports have failed to change. So it’s really important these appeals are going to be (reasonably) accessible by the court making links available to those who apply in advance (we’ve received ours), although it’s a shame that the original plan to live stream the appeals has had to be abandoned (we assume because the whole thing is now being done remotely rather than in a courtroom due to the current covid situation). We’ll do our best to bring it to you in due course – it may be too much for many to sit through the full 3 day long performance, so we will try and bring you at the very least the nutshells version of how it all unfolds. Anyway, back to Hayden J and F v M. This is a case about coercive and controlling behaviour – something which is as insidious and damaging as it is tricky to escape and prove. The facts of the case are really disturbing. Even for someone used to reading pretty gruesome judgments and case papers it was really uncomfortable reading for me – a reminder that something does not need to be physically serious to have a profound impact on those who experience it. It would be wrong to pretend that the very serious level of controlling and manipulative behaviour (in respect of two consecutive – but very different – women) that is described in detail in this judgment is particularly commonplace – more often controlling and coercive behaviour will be less extreme in nature, and perhaps as a result, even harder to persuade a court that it has the requisite characteristics to support a finding of coercive and controlling behaviour (‘CCB’). But a reading of the judgment and the account of the things that the father did to the two women in question (and to their own families), should make very clear to anyone who was in doubt about it, why we should take CCB seriously. This man was able to completely take over the lives of the women he targeted, and to rob them of their freewill. In truth, this case could be equally well described as extreme psychological abuse. Even though the facts may not be typical, the judgment is useful because it analyses the features of CCB, which of course will be helpful in other cases. Hayden J tells us that “it is crucial to emphasise that key to this particular form of domestic abuse is an appreciation that it requires an evaluation of a pattern of behaviour in which the significance of isolated incidents can only truly be understood in the context of a much wider picture.” Drawing on Home Office guidance and an earlier judgment of his he identifies a list of ‘paradigm behaviours’ : Isolating a person from their friends and family Depriving them of their basic needs Monitoring their time Monitoring a person via online communication tools or using spyware Taking control over aspects of their everyday life, such as where they can go, who they can see, what to wear and when they can sleep Depriving them access to support services, such as specialist support or medical services Repeatedly putting them down such as telling them they are worthless Enforcing rules and activity which humiliate, degrade or dehumanise the victim Forcing the victim to take part in criminal activity such as shoplifting, neglect or abuse of children to encourage self-blame and prevent disclosure to authorities Financial abuse including control of finances, such as only allowing a person a punitive allowance Control ability to go to school or place of study Taking wages, benefits or allowances Threats to hurt or kill Threats to harm a child Threats to reveal or publish private information (e.g. threatening to ‘out’ someone) Threats to hurt or physically harming a family pet Assault Criminal damage (such as destruction of household goods) Preventing a person from having access to transport or from working Preventing a person from being able to attend school, college or University Family ‘dishonour’ Reputational damage Disclosure of sexual orientation Disclosure of HIV status or other medical condition without consent Limiting access to family, friends and finances He goes on to consider the various definitions of CCB, firstly in family proceedings (PD12J) : ‘Coercive and controlling behaviour’ is defined in the Family Procedure Rules 2010 PD12J: “coercive behaviour” means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim; “controlling behaviour” means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour;” For completeness, domestic abuse is defined more broadly: “domestic abuse” includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment”. He considers the criminal law (s76 Serious Crime Act 2015), which creates an offence of coercive and controlling behaviour in an intimate relationship, and tells us this is informative in the family context : The criminal legislation emphasises the repeated and/or continuous nature of this abuse. It highlights the serious alarm or distress caused by it, as well as the significant impact on the complainant’s daily life, or to use the precise words of the statute its “adverse effect on B’s usual day to day activities”. He reaches the conclusion that the FPR definition is useful when broken down like this : Coercive Behaviour: i. a pattern of acts; ii. such acts will be characterised by assault, threats, humiliation and intimidation but are not confined to this and may appear in other guises; iii. the objective of these acts is to harm, punish or frighten the victim. Controlling Behaviour: i. a pattern of acts; ii. designed to make a person subordinate and/or dependent; iii. achieved by isolating them from support, exploiting their resources and capacities for personal gain, depriving them of their means of independence, resistance and escape and regulating their everyday activities.i. The condition of knowledge of the impact on the part of the perpetrator; ii. A continued series of transactions (there cannot, in this definition, be a single incident of coercive and controlling behaviour) and; iii. the consequence of a substantial adverse effect on the complainant (be it via fear of applied violence or otherwise). So, there has to be a pattern of acts which has the purpose of harming, frightening or punishing the victim or of making her/him subordinate or dependent. And the perpetrator must know what s/he is doing. One of the very concerning features of this case was that the womens’ families recognised early on what was happening and tried to help the women leave, or to seek help – but professionals either failed to appreciate what was really going on, diverted by the manipulative father’s own allegations, or too credulous when F suggested he was himself the victim of the mother’s own parents abusive behaviour to probe and reveal the real risk he posed. (When the mother fled to her parents for some space to think about the relationship, he had reported them as holding her hostage and suggested that she was at risk of honour based violence). For the above reasons and as this case has revealed, it is often difficult for professionals to identify this type of abuse and to be most effective in their investigations. F has repeatedly cast himself as a victim and been accepted as such by the police, in particular, but also by others e.g. neighbours. MGM and MGF were both crudely caricatured as “honour-based killers”. There was not a scintilla of evidence to support this, but it strikes me as having become tacitly accepted, merely because the accusation was repeated and documented. I am also concerned that the lack of challenge may lie in the fact that the grandparents are Hindu and have brown skin. I am left with the impression that an overly anxious cultural sensitivity inhibited more robust forensic enquiry. In simple terms the allegation would have gained no traction at all if a white couple had taken their daughter to a clinic for advice on her pregnancy. The visit to the pregnancy advisory clinic was the sole basis for the spurious allegation that M’s parents were “honour-based killers”. This ought to have been identified and the allegation discounted. That in turn might well have generated a more sceptical assessment of F. There are undoubtedly some lessons for police and other child protection agencies here. As for lessons, in a brief Post Script, Hayden J tells us that counsel have invited him to make comment on the use of Scott Schedules (i.e. a table identifying the allegations and the evidence relied on in support) in cases involving allegations of CCB. Although he clearly doesn’t want to steal the thunder of the Court of Appeal here he says this : Having given the matter considerable thought I have come to the clear conclusion that it would not be appropriate to give prescriptive guidance. Whilst I entirely see the advantage of carefully marshalling the evidence and honing down the allegations, I can also see that what I have referred to as a particularly insidious type of abuse, may not easily be captured by the more formulaic discipline of a Scott Schedule. As I have commented above, what is really being examined in domestic abuse of this kind is a pattern of behaviour, possibly over many years, in which particular incidents may carry significance which may sometimes be obvious to an observer but to which the victim has become inured. It seems to me that what is important is that the type of abuse being alleged is made clear to the individual who is said to be the perpetrator. An intense focus on particular and specified incidents may be a counterproductive exercise. It carries the risk of obscuring the serious nature of harm perpetrated in a pattern of behaviour. This was the issue highlighted in the final report of the expert panel to the Ministry of Justice: ‘Assessing Risk of Harm to Children and Parents in Private Law Children Cases’ (June 2020). It is, I hope, clear from my analysis of the evidence in this case, that I consider Scott Schedules to have such severe limitations in this particular sphere as to render them both ineffective and frequently unsuitable. I would go further, and question whether they are a useful tool more generally in factual disputes in Family Law cases. The subtleties of human behaviour are not easily receptive to the confinement and constraint of a Schedule. I draw back from going further because Scott Schedules are commonly utilised and have been given much judicial endorsement. I do not discount the possibility that there will be cases when they have real forensic utility. Whether a Scott Schedule is appropriate will be a matter for the judge and the advocates in each case unless, of course, the Court of Appeal signals a change of approach. Being less facetious, Hayden J is right to defer to the Court of Appeal on a topic of such importance. His own skepticism about the appropriateness of such schedules in CCB cases is writ clear, but there is a lot of caselaw that ties the hands of Family Court judges, even of High Court Judges on this issue – if it’s going to change it has to be changed by the Court of Appeal. And in truth, there doesn’t seem to be much evidence that in this case the schedules had actually caused any particular difficulty – there is barely a mention of them in the judgment, except where the judge indicates he didn’t want to be drawn into an overly formulaic approach, preferring instead to evaluate all the evidence in the round before drawing conclusions. Although the orthodox approach of requiring allegations of domestic abuse to be pleaded through a Scott Schedule is well established, Hayden’s hints about the limited utility and potential downsides of Scott Schedules are not exactly heretical. There are a number of earlier judicial hints that individual judges do not find them terribly useful, and practitioners often complain that the limiting of allegations to six or ten for reasons of case management or convenience is artificial and that it can lead to injustice. And the Harm report published in the autumn of last year identified the issue as follows : reducing a long and complicated history of abuse into neat and discrete descriptions is challenging and can itself result in minimisation of the abuse. We shall see what happens later in the week. In the meantime, much food for thought… For those who are interested, here was my initial ‘take’ on the case on twitter based on my experience in such cases. I sometimes wonder if our approach to Scott Schedules is merely a symptom of a deeper malaise. I also wonder whether the system has yet fully appreciated the implications of the 3 pronged definition of CCB – there is a lot of focus in many cases on actions, patterns and impact but very little on the intent of the perpetrator. Whilst it was obvious in this case where the acts themselves were brazenly outside the bounds of normal behaviour and the intention sometimes explicit, it is more often far harder to get a handle on what is going on in the mind of the alleged perpetrator in the context of small and subtle acts of alleged control. Feature pic : Another nail for the coffin by Anthony Clark on Flickr (creative commons – thanks!) 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. Thanks for reading!
No comment yet.
Scooped by Jacqui Gilliatt
Scoop.it!

Edward Fennell’s LEGAL DIARY –

Edward Fennell’s LEGAL DIARY – | Legal In General | Scoop.it
Friday 15 January 2021 Edition 41 Diary news, commentary, insights, appointments and arts from the legal world SHORT THOUGHT FOR THE WEEK – SO WHAT ARE ‘UK VALUES’? So whose justice is protected here?
No comment yet.
Scooped by Jacqui Gilliatt
Scoop.it!

‘Inexcusable’ failures in capacity in forensics market, reports watchdog – The Justice Gap

‘Inexcusable’ failures in capacity in forensics market, reports watchdog – The Justice Gap | Legal In General | Scoop.it
Failures in capacity in the forensics science market were ‘inexcusable’ and causing delays for complainants, suspects and witnesses, according to the watchdog. The forensic science regulator, Gillian Tully, in her final report, described her six years’ tenure as ‘fraught with financial, reputational and capacity problems’. Dr Tully flagged quality issues in a number of areas and , for example, pointed out that no providers in the area of image comparison held the correct accreditation and examples of poor practice were ‘numerous and the risk of miscarriage of justice remains’. Digital media investigators had not yet made ‘any significant steps towards implementing the required quality standards’, the regulator also noted; adding that in some forces they were kept separate from their digital forensics colleagues ‘presumably… in an attempt to avoid the adoption of quality standards’. ‘If we are to achieve a fully functioning system, with enough capacity to ensure timely delivery, there is also an urgent need for more fundamental change,’ said Dr Tully. ‘It is inexcusable that the primary impacts of the shortfalls in capacity for toxicology and digital forensics, which have been clear for many years, still fall on the frontline forensic science practitioners. They bear the brunt of the stresses in the system, with consequent risks to their well-being and, potentially, to quality.’ The impact on justice was ‘even more inexcusable’. She quoted Her Majesty’s Inspectorate of Constabulary, Fire and Rescue Services on the rationing of toxicology services which led to ‘the inescapable conclusion… that offenders who are suspected of driving while under the influence of drugs are being tolerated and allowed to present a continuing threat to communities. We don’t believe that this is acceptable.’ The Forensic Science Regulator and Biometrics Strategy Bill is currently making its way through Parliament and would give statutory enforcement powers to the next regulator.
No comment yet.
Scooped by Jacqui Gilliatt
Scoop.it!

Family Law Week: Breaching Legal Advice Privilege

Family Law Week: Breaching Legal Advice Privilege | Legal In General | Scoop.it
Home > Articles Breaching Legal Advice Privilege Henry Clayton, barrister of 4PB, considers the circumstances in which documents which purport to be privileged are, in fact, admissible. Henry Clayton, barrister of 4PB. What if assets have been moved to frustrate enforcement and the only person who knows where is the other party's former solicitor? Privilege protects that party, right? Not necessarily. There are many circumstances in which documents which purport to be privileged are, in fact, admissible. If such a document contains important evidence, practitioners need to ask themselves whether its apparent status can be challenged. First stage: does privilege even apply in the circumstances? Legal advice privilege covers communications between lawyer and client for the purpose of furnishing legal advice, but not all communications between client and lawyer attract the privilege. The 'legal spectacles' test was formulated by the House of Lords in the leading case of Three Rivers DC v Bank of England (No.6) [2004] UKHL 48, [2005] 1 AC 610, in the speech of Lord Rodger at [60]. In that matter the issue was the extent to which communications by the Bingham Inquiry Unit about 'presentational matters' was held to be privileged: "Either expressly or impliedly, the BIU was asking them to put on legal spectacles when reading, considering and commenting on the drafts." The courts have traditionally rejected calls to interpret 'legal advice' narrowly so as to restrict the operation of the privilege. In Balabel v Air India [1988] 1 Ch 317, Taylor LJ said at 330G: "legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context." Yet this authority also makes it clear that there are limits to how broadly the privilege will be drawn. Taylor LJ continued at 331H: "those dicta in the decided cases which appear to extend privilege without limit …are too wide. It may be that the broad terms used in the earlier cases reflect the restricted range of solicitors' activities at the time. Their role then would have been confined for the most part to that of lawyer and would not have extended to business adviser or man of affairs." So communications with a business adviser who just happens to be a lawyer will not be privileged if he/she is not expected to put his/her 'legal spectacles' on. Similarly, it was held by the Court of Appeal in USA v Philip Morris [2004] EWCA Civ 330 (the tobacco lobby case) in the speech of Brooke LJ at [80] that: "advice or assistance in collecting and collating, listing, spring-cleaning, storing, transporting and warehousing documents does not amount to legal advice ….and is not the sort of assistance that requires any knowledge of the law." It is long established that there is no privilege in facts, only communications. Accordingly, it was held in Dwyer v Collins (1852) 7 Exch 639 at [646] that: "the privilege does not extend to matters of fact which the attorney knows by other means than confidential communication with his client, though, if he had not been employed as attorney, he probably would not have known them." In G v G [2015] EWHC 1512 (Fam), heard by Roberts J, the wife applied to set aside a consent order after four years on the grounds that the husband had not disclosed he was the primary beneficiary of a family trust. An email by her leading counsel showed that she was aware of possible non-disclosure two years earlier and delayed. Her Ladyship found that there was no privilege attaching to the email which was not for purposes of legal advice (rather recommending a solicitor). Who is the communication between? In AAZ v BBZ [2016] EWHC 3349 (Fam) the husband had disengaged from the litigation and 'relocated' the assets. A witness summons was directed against the solicitor who was involved in this relocation. Haddon-Cave J found that privilege did not apply because he had done so as a man of affairs (and/or because of the iniquity/fraud exception discussed below). On appeal, reported as Kerman v Akhmedova [2018] EWCA Civ 307, [2018] 2 FLR 354, the Court of Appeal emphasised the point that the crucial communications were not between client and lawyer at all, but, in the solicitor's role as a fixer, between him and third parties. Andrews J confirmed the following in Director of Serious Fraud Office v Eurasian National Resources Corporation Ltd [2017] EWHC 1017 (QB) – a. At [65]: "Interposing a lawyer in the chain of communication will not improve the client's chances of claiming legal advice privilege." b. At [75]: "Legal advice privilege does not extend to documents obtained from third parties to be shown to a solicitor for advice." Second stage: if privilege applies, can it be set aside by reason of inequity/fraud? Privilege may not prevent disclosure where the document was prepared for, or in connection with, a nefarious purpose. The leading case on setting aside privilege is Barclays Bank v Eustice [1995] WLR 1238 (CA) in which the bank had granted a secured loan to the defendants (a mother and son) which they had taken steps to defeat by assigning the property in question to their sons/grandsons and arranging for tenancies to be granted.  It was concluded at 1252C that there was a strong prima facie case that the transaction was an undervalue for the purposes of Insolvency Act 1986 s.423, and this was sufficiently iniquitous for public policy to require inspection (in C v C, below, Munby J commented at [42] that a set aside under MCA 1973 s.37 is an analogous situation and in neither circumstance will privilege attach to the transaction). Mere suspicion is not sufficient In C v C (Privilege) [2006] EWHC 336 (Fam), [2008] 1 FLR 115 the former matrimonial home was held by a Liechtenstein Anstalt (a form of corporate entity). A freezing order was made by Munby J (as he then was) on the grounds that the husband was about to use this entity to sell the property and potentially defeat the wife's claims. The wife then sought disclosure of the Anstalt's conveyancing file.  Munby J cited at [44] Lord Wrenbury in O'Rourke v Derbyshire [1920] AC 581 that the applicant must have 'a prima facie case of fraud resting on solid grounds'. It was decided that the wife had not crossed the threshold. It was fatal to the wife's case (at [55]) that there was no express allegation of the required conduct, though elaborate pleadings are not required (see [61]). His Lordship said at [59]: "The wife has much reason to feel suspicious – indeed gravely suspicious….But mere surmise and conjecture, mere speculation and suspicion, even grave suspicion, are not enough." And continued at [67]: "I think the power the court undoubtedly has to examine the documents should be exercised very sparingly." It bears noting that this was a case about examination of documents, not the giving of evidence as to facts. It is also worth noting that the pressure to sell the matrimonial home in that case had, it turned out, come from the mortgagee. Failure to make full and frank disclosure is significant The judgment refers at [72] to another case where privilege had been set aside by Coleridge J: Kimber v Brookman Solicitors [2004] 2 FLR 221. Munby J's analysis of this case was that the decision turned on the husband's very serious litigation misconduct as set out by Coleridge J in that judgment at [10]: "…the husband is 'cocking a snook' at the court… the husband has no intention of assisting in the process or complying with court orders or taking any part in the proceedings at all". Continuing at [16]: "…there is a clear duty in this type of proceedings, as set out in the rules, on both parties to make full, complete and frank disclosure to the court of their means. In this case the husband has failed to abide by the rules and also is in breach of orders of the court. He therefore forfeits, in my judgment, any entitlement in relation to retaining the usual cloak of privilege." In that case the husband had instructed a solicitor in the jurisdiction for a short period and thereafter only used the solicitor's services as a letterbox intervening in the proceedings when it suited him. Similar considerations applied in AAZ v BBZ [2016] EWHC 3349 (Fam), discussed above. Limitations In JSC BTA Bank v Solodchenko [2011] EWHC 2163 (Ch), there was an extant freezing order which required the defendant to disclose details of his assets. Henderson J refused to set aside privilege to permit an order for disclosure of those assets' whereabouts from the defendant's solicitors. It was noted at [46] that the defendant might need to seek the solicitors' advice in relation to the asset-freezing and disclosure order. It is worth noting that Henderson J accepted at [44] that the court had jurisdiction to make the order sought. His Lordship merely declined, on the facts, to exercise it in relation to a very broad order for disclosure of all assets. It was noted at [47] that the order sought was so broad that the solicitors could not form a view about the extent of their obligation without taking instructions from the defendant or making use of privileged information already supplied to them. Caution was expressed at [48] that such applications should not become standard practice. Anti-tipping off orders If a disclosure order had been made against the solicitors, it might have been necessary to make an anti-tipping off order, to prevent them informing their client/former client, and thereby minimise the risk of the assets being moved again before freezing or enforcement measures could be taken. This is what happened in AAZ v BBZ (above). The anti-tipping off order made in AAZ v BBZ was upheld on appeal but the Court of Appeal said it should not have been made until further order (Kerman v Akhmedova [2018] EWCA Civ 307, [2018] 2 FLR 354 at [35]) – though this did not invalidate the injunction.  This form of order is more commonly used in child abduction proceedings. As explained by Hughes J in Re H (Abduction: Whereabouts Order to Solicitors) [2000] 1 FLR 766 (which was cited in the Court of Appeal), it exists in part to protect the solicitors against whom disclosure is sought, and is therefore a point to which practitioners involved in similar situations will wish to turn their minds. 14.1.21
No comment yet.
Scooped by Jacqui Gilliatt
Scoop.it!

Mental Capacity in the MHA – the White Paper –

Mental Capacity in the MHA – the White Paper – | Legal In General | Scoop.it
Building on the very headline points I made here, here is a video looking specifically looking at how the White Paper published on 13 January 2021 addresses mental capacity.It doesn’t cover …...
No comment yet.
Scooped by Jacqui Gilliatt
Scoop.it!

Government pledges biggest overhaul of Mental Health law in 40 years – The Justice Gap

Government pledges biggest overhaul of Mental Health law in 40 years – The Justice Gap | Legal In General | Scoop.it
The Government has announced a major reform of the Mental Health Act including speedier transfer of mentally ill prisoners to hospital and greater emphasis on patient autonomy.The Reforming the Mental Health Act white paper, published Wednesday, builds on the recommendations of Professor Sir Simon Wessely in his 2018 Independent Review of the Mental Health Act. Proposed changes include the introduction of ‘advance choice documents’, which would enable people to express preferences on their care prior to hospitalisation, and the expansion of the role of independent mental health advocates. Individuals detained under the Act will also be able to nominate someone to represent their interests. This marks a significant departure from the current system, which can detain people for mental health treatment without their consent. There were almost 50,000 detentions in 2018, an increase of 47 percent over the past decade. Reflecting on the ‘unique risk profile’ of individuals who are both mentally ill and incarcerated, the paper also proposes changes to the criminal justice system. These include a 28-day time limit within which prisoners should be transferred to hospital and the ability for defendants to be taken directly from court to healthcare settings. Justice secretary Robert Buckland, who as a barrister practised in criminal law, said that prison officers should be ‘dealing with criminals, not the mentally unwell’. The reforms will also focus on the disproportionate detainment of people from black, Asian and minority ethnic (BAME) backgrounds under the Act. Black people are over four times more likely to be detained, and ten times more likely to be put on a Community Treatment Order. The Government has proposed the introduction of ‘culturally appropriate’ mental health advocates, as well as the piloting of a Race Equality Framework to be used across mental health trusts. Mark Rowland, chief executive of the Mental Health Foundation, hailed the publication of the white paper as ‘an incredibly important step’, adding that the reforms should ‘honour patient choice and put restraint and healing at the heart of how we respond to mental distress’. Speaking to The Telegraph on Tuesday night, Nadine Dorries – minister for Mental Health, Suicide Prevention and Patient Safety – said that the Government was ‘determined to expand and transform mental health services. For anyone needing support, you are not alone. Please, reach out.’
No comment yet.
Scooped by Jacqui Gilliatt
Scoop.it!

Judge’s ‘outdated’ views lead to more rape appeals | News | The Times

Judge’s ‘outdated’ views lead to more rape appeals | News | The Times | Legal In General | Scoop.it
Two women who claim they were raped by former partners are appealing against rulings by a judge who was rebuked for having “outdated” views on sexual assault.They claim that Judge Robin Tolson was...
No comment yet.
Scooped by Jacqui Gilliatt
Scoop.it!

U-turn over law on bail to protect victims of domestic violence – The Justice Gap

U-turn over law on bail to protect victims of domestic violence – The Justice Gap | Legal In General | Scoop.it
New measures will be introduced by the Home Office to enable police to impose bail on suspects in cases of domestic abuse and sexual violence. The reforms come after a joint inspection by Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services and HM Crown Prosecution Service Inspectorate found that the Policing and Crime Act 2017, which had been intended to remedy the problem of suspects being on bail for long periods of time, increased the likelihood of a case failing to result in the successful prosecution of an offender.  The 2017 Act introduced a presumption against using pre-charge bail unless deemed to be necessary and proportionate, and a 28-day timescale for that bail. However, following concern from campaigners the Home Office has acknowledged that this had the knock-on effect of increasing the number of offenders released under investigation, leading to victims feeling unsafe and unprotected by the police. The report also found that the delays resulting from the act made it more likely that victims would lose confidence and withdraw from the process. The Inspectorate heard evidence that victims and survivors are currently not consulted at all on bail, and in some cases were not informed when bail conditions had been removed. Ellie Butt, Head of Policy at Refuge, said: ‘Far too many survivors of domestic and sexual abuse who bravely report crimes to the police see alleged perpetrators released under investigation, meaning there are no restrictions on contacting the survivor. This puts many women and children at real risk of harm and is a huge disincentive to reporting.’ You can read about concerns of defence lawyers about the new regime on the Justice Gap here. Freedom of Information data obtained last year revealed that over 80% of suspects are now released under investigation. At the same time, the average length that they are under investigation and stuck in legal limbo is now 139 days compared to the average 90 day length of police bail prior to the changes. The reforms announced by the Home Office are to be called ‘Kay’s Law’ in memory of Kay Richardson, a woman murdered by her ex-partner after he was released whilst still under investigation, and given the keys to their house, despite evidence of previous domestic abuse. Under the new laws, police will have to consider key risk factors, including safeguarding victims. The change was welcomed by campaigners at the Centre for Women’s Justice, who first launched a police super-complaint against the Act in March 2019. Nogah Ofer, a solicitor at the CWJ, said: ‘This Bill is long overdue, and all police forces must ensure that they provide the protection that survivors of domestic abuse need…We urge police forces to ensure that officers actually apply the new law, and use bail conditions to protect vulnerable people’ Speaking on behalf of the National Police Chiefs’ Council Lead for Bail Management, Chief Constable Darren Martland said: ‘We will continue to work with the Home Office and College of Policing so that we are striking that balance between protecting vulnerable victims and witnesses while upholding the rights of suspects.’
No comment yet.
Scooped by Jacqui Gilliatt
Scoop.it!

Monday morning with Alex Williams’ cartoons | BabyBarista

Monday morning with Alex Williams’ cartoons | BabyBarista | Legal In General | Scoop.it
Monday morning with Alex Williams’ cartoons This cartoon is by Alex Williams who draws the Queen’s Counsel cartoons for The Times and in numerous books including The Queen’s Counsel Lawyer’s Omnibus. He offers almost all of his cartoons for sale at £120 for originals and £40 for copies and they can be obtained from this email info@qccartoon.com. January 18, 2021 · Tim Kevan · Comments Closed Posted in: Uncategorized « Previous post
No comment yet.
Scooped by Jacqui Gilliatt
Scoop.it!

When is a refusal by a 16 or 17 year old of treatment determinative? –

When is a refusal by a 16 or 17 year old of treatment determinative? – | Legal In General | Scoop.it
When should refusal of treatment by someone under 18 be determinative?   For many years, it had been thought that the Court of Appeal had resolved this question in two decisions in the 1990s: In re…...
No comment yet.
Scooped by Jacqui Gilliatt
Scoop.it!

‘Unprecedented’ court backlogs represent ‘greatest risk to criminal justice’, say justice watchdogs – The Justice Gap

‘Unprecedented’ court backlogs represent ‘greatest risk to criminal justice’, say justice watchdogs – The Justice Gap | Legal In General | Scoop.it
Four criminal justice watchdogs have united to express ‘grave concerns’ about the long-term impact of the pandemic on backlogs in the courts as the latest figures revealed more than 53,000 cases waiting to come before Crown Courts. In a joint report, the Chief Inspectors – constabulary, probation, prisons and Crown Prosecution Service – flag up lengthy waits at all stages of the criminal justice process that ‘benefit no one and risk damage to many’. According to the report, the number of ongoing cases in Crown Courts was 44% higher in December 2020 compared to February of the same year. Cases have now been scheduled for 2022. ‘Delays mean victims must wait longer for cases to be heard; some will withdraw support for prosecutions because they have lost faith in the process,’ said chief inspector of probation Justin Russell. ‘Witnesses will find it difficult to recall events that took place many months ago, and prosecutors waste significant periods of time preparing for cases that do not go ahead. Those accused of crimes face delays in their opportunities to defend themselves and seek acquittal. Defendants are kept on remand for longer periods, and prisoners continue to experience a highly restrictive prison regime or experience delays in accessing rehabilitation programmes and support through probation services.’ Russell said that court backlogs had ‘a ripple effect’ across all criminal justice agencies. ‘This is a whole-system problem that requires a whole-system solution,’ he added. According to the report the government’s early-release schemes  introduced in April 2020 to reduce the prison population, had ‘very limited effect’ with only 316 prisoners being released ‘despite many more prisoners being assessed as suitable. The schemes were paused in August 2020. The total prison population fell slightly by 4.5% (82,990 to 79,235) this was explained by the fall in court cases reducing the need for receptions to prison. However the remand population increased by 22% (from 10,043 to 12,274) to the highest figure in six years, representing 15.5% of the prison population. As at 13 December 2020, the CPS’s post-charge caseload was 67% higher than pre-Covid which equated to 67,679 extra cases and took  the total to 169,419. Magistrates’ court live caseload was 83% higher and Crown Court live caseload was 44% higher with 27,700 estimated to be trials, a 65% increase since February 2020. The inspectorates reported it was ‘not unusual to find trials being listed into 2022’ as the backlog grew. The Inspectorate of Constabulary and Fire & Rescue Services cited ‘numerous examples of serious cases’ that had been cancelled at short notice, despite the offences having taken place a long time before. ‘Police officers and staff at all levels expressed significant concerns about the backlog of cases and its impact on victims and witnesses,’ the report stated. ‘Apart from affecting the confidence of victims in the CJS, it is likely that some victims will become unwilling to support prosecutions because of the delays.’ ‘These unprecedented and very serious court backlogs constitute the greatest risk to criminal justice and the ripple effects across all agencies are profound. Agencies – and the committed individuals working in them – will do all they can to cope, but we have grave concerns that this will be at much personal and organisational cost. The problem is a whole- system one, not only a court one. It is the responsibility of government to respond on a whole-system basis.’ Joint inspectorate report A recent survey by the London Criminal Court Solicitors Association revealed a four year wait for some parties in serious cases.On defence lawyer highlighted a serious sexual offence alleged in January 2018 involving ‘if true, a traumatised teenage victim’ and his client, ‘a teenager of prior good character’. The court case only began in February 2020 with the Trial set for this month but court has pushed it back to February 2022. ‘This implies that things are so bad this case was a lower priority,’ said the lawyer. ‘Issues in the case are of consent, that will require an examination of the small details of their interactions prior to and during acts.  All will have to give this evidence four years after the event. They cannot put it out of their minds while they wait.’ Another case involved an alleged five-person affray in south London captured on CCTV in September 2017. Charges were authorised in April 2020 when his lawyers unsuccessfully argued that the trial be discontinued because of delay. There is still not trial date and, the lawyer noted, ‘we may well yet reach a full four years between incident and disposal’.
No comment yet.
Scooped by Jacqui Gilliatt
Scoop.it!

Family Law Week: Workplace support for victims of domestic abuse: review report

Home > News Workplace support for victims of domestic abuse: review report The Department for Business, Energy & Industrial Strategy has published a report on improving workplace support for domestic abuse victims, including raising awareness and sharing best practice among employers. The report sets out the key findings from the review by BEIS into how victims of domestic abuse can be supported in the workplace and the actions which government will take as a result. There are three main themes: raising awareness and understanding of the impacts that domestic abuse can have on individuals and employers building and sharing best practice among employers  the role of employment rights. The report draws upon analysis of responses to the BEIS call for evidence which ran from June to September 2020. Chapter 1 considers the impact of domestic abuse on individuals and employers, including the challenges brought by the coronavirus pandemic. It identifies that an effective employer response is founded on being able to spot the signs of domestic abuse and know how to signpost to specialist services. The chapter sets out the steps which the Government will take to work with employers to raise awareness of domestic abuse as a workplace issue. Chapter 2 focuses on best practice and the positive role that employers can play, alongside the barriers for individuals and employers in accessing and providing support. It finds that having a workplace policy can be an effective mechanism for employers and employees, but that this needs to be embedded in wider organisational frameworks and cultures. The government wants all employers to have the tools and resources they need to support their members of staff and will set up a working group to raise awareness and drive change. Chapter 3 discusses the role that employment rights can play in giving employers and employees the certainty they need. While individuals may be able to use annual leave or request flexible working in order to take time away from work to deal with the impacts of domestic abuse, the review has found evidence to suggest that there are unmet needs in this area. In light of this, the government will consider through a consultation the steps which can be taken for victims of domestic abuse as well as consult to take forward the manifesto commitment to 'encourage flexible working and consult on making it the default unless employers have good reasons not to'. For the report, click here. 17/1/21
No comment yet.
Scooped by Jacqui Gilliatt
Scoop.it!

Does being watched change how justice is done? A researcher’s reflections –

Does being watched change how justice is done? A researcher’s reflections – | Legal In General | Scoop.it
Now seems like an ideal time to reflect on what we have learned about the relationships between open justice and social justice and to discuss with those working across other courts and tribunals how our experiences intersect with theirs - what we might learn, and how we might maximise our impact.
No comment yet.
Scooped by Jacqui Gilliatt
Scoop.it!

How the government proposes to reform the Mental Health Act

How the government proposes to reform the Mental Health Act | Legal In General | Scoop.it
Tim Spencer-Lane sets out how the law governing compulsory treatment would change under the government's White Paper to reform the Mental Health Act...
No comment yet.
Scooped by Jacqui Gilliatt
Scoop.it!

The Education and Inspections Act 2006 (Prescribed Education and Training etc) (Amendment) Regulations 2021 No. 11

The Education and Inspections Act 2006 (Prescribed Education and Training etc) (Amendment) Regulations 2021 No. 11 | Legal In General | Scoop.it
Statutory Instruments 2021 No. 11 Education, England Employment And Training, England The Education and Inspections Act 2006 (Prescribed Education and Training etc) (Amendment) Regulations 2021 Made 6th January 2021 Laid before Parliament 8th January 2021 Coming into force 29th January 2021 The Secretary of State for Education makes the following Regulations in exercise of the powers conferred by sections 123(1)(h), 123(2), 127(3) and 130(5)( 1) of the Education and Inspections Act 2006( 2): Citation and commencement 1.  These Regulations may be cited as the Education and Inspections Act 2006 (Prescribed Education and Training etc) (Amendment) Regulations 2021 and come into force on the twenty first day after the day on which they are laid. Amendment of the Education and Inspections Act 2006 (Prescribed Education and Training etc) Regulations 2007 2.—(1) The Education and Inspections Act 2006 (Prescribed Education and Training etc) Regulations 2007( 3) are amended as follows. (2) In regulation 3 (prescribed education and training)— (a) in paragraph (1)(a)— (i) omit “LSC or OfS funded”; (ii) after “training falling within section 123(1)(a) to (g) of the Act” insert “, which is funded wholly or partly by the Secretary of State”; (b) in paragraph (1)(b) for “Council” substitute “Secretary of State”; (c) omit paragraph (2). (3) In regulation 7(3) (manner of publication of action plans following inspections)— (a) in sub-paragraph (b) for “Council” substitute “Secretary of State; and”; (b) omit sub-paragraph (c). (4) In regulation 8(1) (publication of action plans following area inspections) omit “(2) or”( 4). (5) In regulation 9 (manner of publication of action plans following area inspections)— (a) in paragraph (1) omit “(2) or”; (b) in paragraph (3)(b) for “Quality Improvement Agency” substitute “Secretary of State”. Gillian Keegan Parliamentary Under Secretary of State Department for Education 6th January 2021 EXPLANATORY NOTE (This note is not part of the Regulations) These Regulations amend the Education and Inspections Act 2006 (Prescribed Education and Training etc) Regulations 2007. Regulation 3 is amended to reflect that the education and training prescribed in regulation 3 under section 123(1)(h) of the Education and Inspections Act 2006, is funded by the Secretary of State, rather than the Office for Students or the Learning and Skills Council (“LSC”). The LSC no longer exists. Regulation 7 is amended to provide that copies of statements prepared under section 127(2) of the Education and Inspections Act 2006 must be sent to the Secretary of State, rather than the LSC. In addition, regulations 7 and 9 are amended to remove references to the Quality Improvement Agency which no longer exists. Regulations 8 and 9 are amended to reflect that section 130(2) of the Education and Inspections Act 2006 has been repealed. Regulation 9 is amended to provide that copies of statements prepared under section 130(3) of the Education and Inspections Act 2006 must be sent to the Secretary of State, rather than the Quality Improvement Agency. An impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sector is foreseen. ( 1) There is an amendment to section 130(5) but it is not relevant to these Regulations. ( 2) 2006 c. 40. ( 3) S.I. 2007/464, as amended by S.I. 2014/80and S.I. 2019/1027. ( 4) Section 130(2) of the Education and Inspections Act 2006 was repealed by section 64(3) of and Schedule 14 to the Deregulation Act 2015 (c. 20).
No comment yet.
Scooped by Jacqui Gilliatt
Scoop.it!

PRACTICE DIRECTION 52A – APPEALS - Civil Procedure Rules

This Practice Direction supplements CPR Part 52 Contents of this Practice Direction Title Number Contents of this Practice Direction Para. SECTION I – PRACTICE DIRECTIONS SUPPLEMENTING PART 52   SECTION II – INTRODUCTION   SECTION III – DESTINATIONS OF APPEAL   Filing appellant’s notice in wrong court Para.3.9 SECTION IV – OBTAINING PERMISSION TO APPEAL AND ALLOCATION OF APPEALS   Definitions Para 4.1A Where to apply for permission Para.4.1 Form Para.4.2 Appeals from Masters, Registrars and District Judges of the High Court Para.4.3 Appeals from the County Court to the High Court Para.4.4 Appeals within the County Court Para 4.5 Applications within appeals to the High Court and within the County Court Para 4.5A Appeal in relation to case management decision Para.4.6 Second appeal Para.4.7 SECTION V – SKELETON ARGUMENTS   SECTION VI – DISPOSING OF APPLICATIONS AND APPEALS BY CONSENT   Dismissal of applications or appeals by consent Para.6.1 Allowing unopposed appeals or applications on paper Para.6.4 Disposal of applications and appeals involving children or protected parties Para.6.5 SECTION VII – REOPENING APPEALS (RULE 52.30)   SECTION VIII – TRANSITIONAL PROVISIONS   Contents of this Practice Direction This Practice Direction is divided into the following sections – Section I – Practice Directions supplementing Part 52 Section II –Introduction Section III – Destinations of Appeal Section IV – Obtaining permission to appeal Section V – Skeleton arguments Section VI – Disposing of applications and appeals by consent Section VII – Reopening appeals Section VIII – Transitional provisions Back to top SECTION I – PRACTICE DIRECTIONS SUPPLEMENTING PART 52 1.1 There are five Practice Directions supplementing Part 52 – PD 52A – Appeals: general provisions PD 52B – Appeals in the county courts and the High Court PD 52C – Appeals to the Court of Appeal PD 52D – Statutory appeals and appeals subject to special provision PD 52E – Appeals by way of case stated Back to top SECTION II – INTRODUCTION 2.1 These Practice Directions apply to all appeals to which Part 52 applies. 2.2 Part 52 complements the provisions of sections 54 to 57 of the Access to Justice Act 1999 and provides a uniform procedure for appeals in the county courts and the High Court and a modified procedure for the Civil Division of the Court of Appeal. Part 52 does not apply to – (a) family proceedings in the High Court or county courts but does apply to appeals to the Court of Appeal from decisions made in family proceedings with such modifications as may be required; (b) appeals in detailed assessment proceedings against the decision of an authorised court officer. Back to top SECTION III – DESTINATIONS OF APPEAL 3.1  Section 56 of the Access to Justice Act 1999 enables the Lord Chancellor to specify the destinations of appeal in different cases. The Access to Justice Act 1999 (Destinations of Appeal) Order 2016 specifies the general destinations of appeal which apply subject to any statutory provision to the contrary. Appeals in respect of individual insolvency and corporate insolvency proceedings are specified in section 375 of the Insolvency Act 1986 and rule 7.47 of the Insolvency Rules 1986 respectively. The destinations of appeal provided by these provisions are explained in the following paragraphs of this section of this Practice Direction. 3.2 ‘Statutory appeals’ and ‘Appeals by way of case stated’ are dealt with in PD52D – refer to those provisions for the appropriate court to which such an appeal may lie. 3.3 The court or judge to which an appeal is to be made (subject to obtaining any necessary permission) is set out in the tables below– Table 1 deals with appeals in proceedings other than family and insolvency proceedings; Table 2 deals with appeals in insolvency proceedings; and Table 3 deals with appeals in family proceedings which may be heard in the Family Division and to which the CPR may apply. 3.4 Definitions of terms and abbreviations used in Tables 1, 2 and 3 – ‘Destination’: the court to which the appeal lies. ‘DJ’: District judge. ‘CJ’: Circuit judge including a recorder or a district judge who is exercising the jurisdiction of a Circuit judge with the permission of the Designated Civil Judge in respect of the case. ‘CJ (CC)’: Circuit judge in the county court. ‘Master’: Master, district judge sitting in a district registry or any other judge referred to in article 4 of the Destination of Appeals Order. ‘HCJ’: single judge of the High Court. ‘HCJ(FD)’: single judge of the family Division of the High Court. ‘CA’: Court of Appeal. ‘Companies Acts’ means the Companies Act 1985, the Companies Act 1989 and the Companies Act 2006. Registrar’: a Registrar in Bankruptcy, including a salaried or fee paid Registrar in Bankruptcy (Note: Tables 1, 2 and 3 do not include so-called ‘leap frog’ appeals either to the Court of Appeal pursuant to section 57 of the Access to Justice Act 1999 or to the Supreme Court pursuant to section 13 of the Administration of Justice Act 1969.) 3.5 The destinations in the tables set out below apply in relation to first appeals, whether the decision is interim or final. (For a second appeal (an appeal from a decision of the County Court or the High Court which was itself made on appeal), the destination is the Court of Appeal (save where the original decision was a decision of an officer authorised to assess costs by the Lord Chancellor: see article 6 of the Access to Justice Act 1999 (Destination of Appeals) Order 2016).) Table 1 – Proceedings other than family or insolvency proceedings Court Deciding judge Decision under appeal Destination County DJ Any, other than a decision in non-insolvency proceedings brought pursuant to the Companies Acts CJ(CC) A decision in non-insolvency proceedings brought pursuant to the Companies Acts HCJ or Registrar CJ Any HCJ High Master, Registrar or DJ Any HCJ HCJ Any CA Intellectual Property Enterprise Court DJ Any Enterprise Judge Enterprise Judge Any CA Table 2 – Insolvency proceedings Court Deciding judge Proceedings Destination County DJ Individual insolvency HCJ Corporate insolvency HCJ or Registrar CJ Any HCJ High Master, Registrar or DJ Any HCJ HCJ Any CA   Table 3 – Family proceedings in the Principal Registry of the Family Division and to which the CPR will apply The proceedings to which this table applies include proceedings under the Inheritance (Provision for Family and Dependants) Act 1975 and proceedings under the Trusts of Land and Appointment of Trustees Act 1996. Deciding judge Decision under appeal Destination DJ Any HCJ(FD) HCJ(FD) Any CA 3.6 Omitted. 3.7 Omitted. 3.8 Omitted. Back to top Filing appellant’s notice in wrong court 3.9 (1) Where a party attempts to file an appellant’s notice in a court which does not have jurisdiction to issue the notice, a court officer may notify that party in writing that the appeal court does not have jurisdiction in respect of the notice. (2) Before notifying a person under paragraph (1) the court officer must confer – (a) with a judge of the appeal court; or (b) where the Court of Appeal is the appeal court, with a court officer who exercises the jurisdiction of that Court under rule 52.24. (3) Where a court officer, in the Court of Appeal, notifies a person under paragraph (1), rule 52.24(5) and (6) shall not apply. Back to top SECTION IV – OBTAINING PERMISSION TO APPEAL AND ALLOCATION OF APPEALS Definitions 4.A1 Definitions of terms used in this Section— ‘heard’: in the context of an application, includes dealing with that application on paper as well as orally. ‘Group A Judge’: a High Court Judge or a person authorised under paragraphs (1), (2) or (4) of the Table in section 9(1) of the Senior Courts Act 1981 to act as a judge of the High Court. ‘Group B Judge’: any person who is not a Group A Judge but who is authorised under section 9 of the Senior Courts Act 1981 to act as a judge of the High Court. ‘Group C Judge’: a person authorised under paragraphs (4A) or (5) of the Table in section 9(1) of the Senior Courts Act 1981 to act as a judge of the High Court. ‘Group D Judge’: a person authorised under paragraph (6) of the Table in section 9(1) of the Senior Courts Act 1981 or section 9(4) of the Senior Courts Act 1981 to act as a judge of the High Court. ‘Registrar’: a Registrar in Bankruptcy, including a salaried or fee paid Registrar in Bankruptcy. ‘The Appropriate Presiding or Supervising Judge’ means the relevant Supervising judge of the Business and Property Courts or relevant Presiding judge of the Queen’s Bench Division, and includes the Chancellor of the High Court, the Judge in Charge of the Queen’s Bench List, and the President of the Queen’s Bench Division. Where to apply for permission 4.1 An application for permission to appeal may be made– (a) to the lower court at the hearing at which the decision to be appealed against is given (in which case the lower court may adjourn the hearing to give a party an opportunity to apply for permission to appeal); or (b) where the lower court refuses permission to appeal or where no application is made to the lower court, to the appeal court in accordance with rule 52.12. Back to top Form 4.2 An application for permission to appeal to the appeal court must be made using an appellant’s notice (form N161 or N164 (small claims track)). Back to top Appeals from Masters, Registrars and District Judges of the High Court 4.3 In relation to appeals from Masters— (a) applications for permission to appeal must be heard by a Group A Judge; (b) if permission to appeal is given, the appeal may be heard by a Group A Judge or a Group B Judge authorised to hear the appeal by the Judge in Charge of the Queen’s Bench List or the Chancellor of the High Court. 4.3A In relation to appeals from Registrars: applications for permission to appeal and appeals must be heard by a Group A Judge. 4.3B In relation to appeals from District Judges of the High Court: (a) applications for permission to appeal must be heard by a Group A Judge; (b) if permission to appeal is given, the appeal may be heard by either: (i) a Group A Judge; (ii) a Group C Judge sitting in the High Court; or (iii) in exceptional circumstances, a Group D Judge authorised to hear the appeal by the Appropriate Presiding or Supervising Judge. Back to top Appeals from the County Court to the High Court 4.4 Where the lower court is the County Court— (a) subject to sub-paragraph (b)— (i) applications for permission to appeal must be heard by a Group A Judge; (ii) if permission to appeal is given: (A)where the appeal is from a Recorder, the appeal may be heard by either a Group A Judge or, in exceptional circumstances, a Group C Judge authorised to hear the appeal by the Appropriate Presiding or Supervising Judge; (B)in all other cases, the appeal may be heard by either a Group A Judge or, in exceptional circumstances, a Group D Judge authorised to hear the appeal by the Appropriate Presiding or Supervising Judge. (b) where the appeal is from a District Judge in proceedings brought pursuant to the Companies Acts, an appeal to the High Court will be dealt with as follows— (i) applications for permission to appeal must be heard in accordance with the following provisions: (A)if the appeal centre is the RCJ, by a salaried Registrar in Bankruptcy; or (B)in any other appeal centre, by a Group C Judge or Group A Judge provided that the judge is one who could hear the appeal in accordance with sub-paragraph (iii). (ii) for appeals in which the appeal centre is the RCJ: appeals must be heard by a Registrar; (iii) for appeals in any other appeal centre: appeals may be heard by a Group A Judge or a Group B Judge, provided that— (A) the Group A Judge is a judge of allocated to the Insolvency and Companies List of the Business and Property Courts or is authorised by the Chancellor of the High Court to hear the appeal; (B) if the Group B judge is a Group D Judge, they have been authorised by the Supervising Judge of the Business and Property Courts to hear the appeal; (C) if the Group B Judge is a Group C Judge, they have appropriate authorisation. (Note: the Practice Direction Insolvency Proceedings makes provision for obtaining permission to appeal and allocation of appeals in insolvency proceedings.) Appeals within the County Court 4.5 The Designated Civil Judge in consultation with the appropriate Presiding or Supervising Judge has responsibility for allocating appeals from decisions of District Judges in the County Court to Circuit Judges and/or Recorders. Such an appeal may only be allocated to a Recorder in exceptional circumstances. Applications within appeals to the High Court and within the County Court 4.5A Applications within appeals other than applications for permission to appeal but including applications for a stay of execution, may be heard and directions in the appeal given, by any judge who may hear the appeal, could be authorised to hear the appeal, or to whom the appeal could be allocated. Back to top Appeal in relation to case management decision 4.6 Where the application is for permission to appeal from a case management decision, the court dealing with the application may take into account whether – (a) the issue is of sufficient significance to justify the costs of an appeal; (b) the procedural consequences of an appeal (e.g. loss of trial date) outweigh the significance of the case management decision; (c) it would be more convenient to determine the issue at or after trial. Case management decisions include decisions made under rule 3.1(2) and decisions about disclosure, filing of witness statements or experts’ reports, directions about the timetable of the claim, adding a party to a claim and security for costs. Back to top Second appeal 4.7 An application for permission to appeal from a decision of the High Court or a county court which was itself made on appeal is a second appeal and must be made to the Court of Appeal. If permission to appeal is granted the appeal will be heard by the Court of Appeal. Back to top SECTION V – SKELETON ARGUMENTS 5.1 (1) The purpose of a skeleton argument is to assist the court by setting out as concisely as practicable the arguments upon which a party intends to rely. (2) A skeleton argument must– be concise; both define and confine the areas of controversy; be set out in numbered paragraphs; be cross-referenced to any relevant document in the bundle; be self-contained and not incorporate by reference material from previous skeleton arguments; not include extensive quotations from documents or authorities. (3) Documents to be relied on must be identified. (4) Where it is necessary to refer to an authority, a skeleton argument must – (a) state the proposition of law the authority demonstrates; and (b) identify the parts of the authority that support the proposition. If more than one authority is cited in support of a given proposition, the skeleton argument must briefly state why. (5) The cost of preparing a skeleton argument which – (a) does not comply with the requirements set out in this paragraph; or (b) was not filed within the time limits provided by this Practice Direction (or any further time granted by the court), will not be allowed on assessment except as directed by the court. 5.2 The parties should consider what other information the appeal court will need. This may include a list of persons who feature in the case or glossaries of technical terms. A chronology of relevant events will be necessary in most appeals. 5.3 Any statement of costs must show the amount claimed for the skeleton argument separately. Back to top SECTION VI – DISPOSING OF APPLICATIONS AND APPEALS BY CONSENT Dismissal of applications or appeals by consent 6.1 An appellant who does not wish to pursue an application or appeal may request the appeal court to dismiss the application or the appeal. If such a request is granted it will usually be subject to an order that the appellant pays the costs of the application or appeal. 6.2 If the appellant wishes to have the application or appeal dismissed without costs, his request must be accompanied by a letter signed by the respondent stating that the respondent so consents. 6.3 Where a settlement has been reached disposing of the application or appeal, the parties may make a joint request to the court for the application or appeal to be dismissed by consent. If the request is granted the application or appeal will be dismissed. Back to top Allowing unopposed appeals or applications on paper 6.4 The appeal court will not normally make an order allowing an appeal unless satisfied that the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity. The appeal court may, however, set aside or vary the order of the lower court by consent and without determining the merits of the appeal if it is satisfied that there are good and sufficient reasons for so doing. Where the appeal court is requested by all parties to allow an application or an appeal the court may consider the request on the papers. The request should set out the relevant history of the proceedings and the matters relied on as justifying the order and be accompanied by a draft order. Back to top Disposal of applications and appeals involving children or protected parties 6.5 Where one of the parties is a child or protected party, any disposal of an application or the appeal requires the court’s approval. A draft order signed by the parties’ solicitors should be sent to the appeal court, together with an opinion from the advocate acting on behalf of the child or protected party and, in the case of a protected party, any relevant documents prepared for the Court of Protection. Back to top SECTION VII – REOPENING APPEALS (RULE 52.30) 7.1 A party applying for permission to reopen an appeal or an application for permission to appeal must apply for such permission from the court whose decision the party wishes to reopen. 7.2 The application for permission must be made by application notice and be supported by written evidence, verified by a statement of truth. A copy of the application for permission must not be served on any other party to the original appeal unless the court so directs. 7.3 Where the court directs that the application for permission is to be served on another party, that party may, within 14 days of the service on him of the copy of the application, file and serve a written statement either supporting or opposing the application. 7.4 The application for permission will be considered on paper by a single judge. Back to top SECTION VIII – TRANSITIONAL PROVISIONS 8.1 This Practice Direction and Practice Directions 52B, 52C, 52D and 52E shall come into force on 1 October 2012 and shall apply to all appeals where – (a) the appeal notice was filed; or (b) permission to appeal was given on or after that date. 8.2 The appeal court may at any time direct that, in relation to any appeal, one or more of Practice Directions 52A, 52B, 52C, 52D or 52E shall apply irrespective of the date on which the appeal notice was filed or permission to appeal was given. Back to top
No comment yet.
Scooped by Jacqui Gilliatt
Scoop.it!

Pippa Knight – Harm Without Awareness | The Transparency Project

Pippa Knight – Harm Without Awareness | The Transparency Project | Legal In General | Scoop.it
This is a guest post from Katie Gollop QC. Katie is a barrister at Serjeants’ Inn Chambers specialising in healthcare related law. She’s also a Deputy High Court Judge allocated to the Family Division and Court of Protection. Alert: this blog about Guy’s and St Thomas’ Children’s NHS Foundation Trust v Pippa Knight [2021] EWHC 25 (Fam) is long because I’ve included lots of quotations from the judgment. The judge expresses himself with such directness that his words are much more useful than any gloss from me. A case summary with quotes forms the second half of the blog. The first half is some thoughts from me. It’s likely that Pippa’s mother will seek a hearing in the Court of Appeal. Any appeal is likely to be considered quickly. [Ed. and we will try an update this post or publish another if that happens]. Thoughts Why Is This Decision Important? Because It Explains Harm Without Awareness. This is the first judgment to provide really clear answers to the issues of principle that were highlighted in Charlie Gard and subsequent cases but which, for many, were not adequately answered: If this child is so badly damaged that they don’t have any awareness and can’t feel any pain, how it is possible to harm the child? How could more, pain free life be more harmful than death? And why can’t the parents have what they want? Poole J provides a clear and accessible explanation (quotes below) of how it is that a person who has no pain and no awareness, can nevertheless suffer burdens and harm as a result of their condition and its treatment. We can expect that part of the judgment to be relied on by healthcare and legal professionals alike on a regular basis. Expert Evidence On Non-Medical Best Interests There were difficulties with the expert evidence supporting Pippa’s mother’s case. One expert (Dr. Wallis) presented theories about the home care proposal in oral evidence only, and so late that others could not respond; he also misunderstood the law. Another (Dr Playfor) had had completely changed his viewpoint since last giving evidence expert evidence in a similar case. But that process of re-thinking left him unable to explain the apparent inconsistency in his opinion that the innate dignity of Pippa’s life meant that it would not be in her best interests to be kept alive on PICU (Intensive Care Unit), but would be in her best interests to be kept alive at home. Medical experts can run into difficulties when they are drawn into giving an opinion on the non-medical aspects of best interests. Given that best interests is an issue for the judge and the judge alone, it is reasonable to ask : should experts even be venturing into that arena? Poole J explained where their evidence could help. He welcomed the views of all of the healthcare professionals, treating and expert, on all matters touching on Pippa’s best interests “because their experience in caring for very ill children gives them considerable insight into how children deal with adversity, how even very disabled children interact with their families, and what a child is like when at the very edge of life.” That said, he gave more weight to their views on medical, rather than non-medical, matters. Poole J has already provided useful guidance about how expert reports on capacity can best assist the Court of Protection (see paragraphs 27-28 of AMDC v AG and CI). To avoid some of the expert evidence difficulties that arose in Pippa’s case, it might help if, at the directions stage, judges gave directions which identified any non-medical matters to be considered by medical experts. Persistent Vegetative State – should this case have come to court? The judge referred to the fact that in law, there are two strands of thought about whether, when the patient is in the persistent vegetative state (PVS), the court can or should balance the benefits and burdens when considering best interests. One strand says that in PVS, there is nothing to balance because treatment can provide no benefit. The other holds that even though treatment may provide no medical benefit, there are other factors that still need to be weighed. In An NHS Trust v Y [2018] UKSC 46, the Supreme Court said that if at the end of a proper medical process (where second opinions are obtained and guidance followed) there is still a difference of medical opinion or lack of agreement from those interested in the patient’s welfare a court application could and should be made. Here, Pippa’s mother did not agree with the Trust’s treatment plan and expert opinion on that plan was divided. The Trust had to make an application. The application was not made on the basis that if the judge found that Pippa was in a PVS (as he did) then she had no interests to be balanced. Instead, all parties asked the judge to look at Pippa’s best interests in their widest sense notwithstanding the diagnosis. Therefore, the judge did not, and was not required to say, which strand of legal thinking he preferred. If Pippa’s mother does appeal, the Court of Appeal is highly unlikely to say anything about whether there is a best interests determination to be made when a child is in PVS, however helpful the healthcare system might find such guidance. Resources All cases other than that concerning Tafida Raqeeb, have been decided on the basis that the issue of whether it is in a child’s best interests to be provided with life-sustaining treatment, is resources blind: the question of who pays is immaterial. The judge hearing Tafida Raqeeb’s case was provided with written evidence from private funders, confirmed in oral evidence by her mother, that private funding for all of her future care needs had been secured. A major part of the family’s case that further ventilation and treatment was in her best interests, was that that treatment would be funded privately and not by the UK taxpayer. When deciding that continued treatment was in her best interests, the judge repeatedly referred to the fact that the treatment was “fully funded”. In contrast, Pippa would be reliant on the NHS. Pippa has been in a London PICU since January 2019 and in the PVS for over a year. It follows that she has been an in-patient on PICU and in the PVS throughout the pandemic. Last year, and again in the last few days, there has been unparalleled pressure on ICU resources (beds, oxygen and staff) with hospitals being close to overwhelmed by patients in dire need. For the first time ever in the NHS, hospitals have had to think about how to prioritise patients for ICU resource allocation because of possible shortages. PICU staff have been transfer to adult ICU to help cope with demand. This context is not mentioned in Poole J’s decision (as one would expect) and yet is hard to avoid for anyone reading his judgment now. Home care would involve a team of between 12 and 15 qualified nurses working in teams of 2 and being present 24/7. The judge said that it would be “difficult to recruit such a team”. He noted that the CCG was aware of Pippa but had not started investigating and had made no funding offer. He said it was a “gap in the evidence” that no-one had made any assessment of whether “her home is suitable to accommodate her, her mother and brother, all the equipment needed, and a team of nurses who would need space and facilities of their own in order to function effectively.” A tracheostomy would be an essential part of any transition home. But the applicant Trust was unwilling to perform a tracheostomy and no other Trust it had approached was willing to do so. The Judge said he had “no reassurance that her envisaged package of home care is practically achievable.” Where does this leave future parents in a similar position to Pippa’s mother? The principle of best interests maybe resources blind, but its implementation is not. There must be evidence that further life-sustaining treatment is deliverable and a deliverable care package requires funding. Where the child is an in-patient and parents want the child to come home, they are in a near impossible position. An NHS funding body like a CCG (or NHS England) is likely to wait for the court’s best interests determination before deciding what it will and won’t fund and where. But without a funding decision, the court will not know if care at home, if medically achievable, is realistic. If, like Tafida Raqeeb’s parents, Pippa’s mother had access to wealthy backers prepared to fund her care, and a consultant at a private hospital willing to perform a tracheostomy, would the outcome for Pippa have been more life, as it was for Tafida? Although Poole J’s reasoning that for Pippa, more life would contain only burdens and no benefit answers the question, perhaps the question does not disappear from the mind entirely. What of the position for hospitals? Tafida was in a minimally conscious state, not PVS and when her case came to court, she had been in ICU for 7 months. Poole J indicated that not only the difference in consciousness but also the different duration of the condition was a material difference. So 7 months leaves room for doubt about whether there is capacity for increased awareness, and 2 years is conclusive. The lawyerly advice to Hospital Trusts is probably to treat for a year before making an application to withdraw treatment for a child with close to undiscernible awareness. But the difficulties for hospitals and their staff in waiting a year should not go unacknowledged. Other patients may have to be turned away. Operations for existing patients may have to be deferred because there the required post-operative ICU bed is lacking. And there may be moral distress for nurses particularly (outside the pandemic let alone in its midst) in caring for a patient who has no conscious awareness to whom they feel they can bring no benefit, when there are many others whom they know they could help. Pippa is testament to the fact that with modern technology and exceptional medical care, children in the PVS can live for a long time. The NHS isn’t capable of funding indefinite treatment of all patients in a minimally conscious state or PVS, judges are not given information about the costs implications for conscious patients of keeping alive those who have minimal consciousness, and yet we assume that if a judge says that continued treatment is in a child’s best interests, it will be funded without limitation. Nothing touches the pain of parents with a child in this situation. But as funders/commissioners do not get involved, NHS treating teams are on their own and caught in the middle. The Trust and its staff bear the psychological, financial and time cost of bringing the application. And individuals are put in the position of having to decide whether, in conscience, they are prepared to provide treatment such as a tracheostomy, which, in itself can cause moral distress. When Covid is done, and there is a re-evaluation of ICU, it is to be hoped that Government will show leadership. Political answers are needed to the equitable and ethical questions that arise in connection with the treatment of patients who, in Poole J’s words, are “at the edge of life”. Should (P)ICU – one of the most costly resources – be rationed for patients who show no improvement? Should the NHS treat patients in the PVS? Should the best interests of patients who have close to no conscious awareness be informed by resources, and if so how? It may be that after Covid, there will be an opportunity for a grown-up national conversation about resources at the edge of life. One thing shines very clearly. Pippa’s mother made a decision to fight for Pippa’s right to a life that is as long as medically possible. That, she believes, is “God’s law”. In love and good conscience, she could not have done otherwise. Her belief that her daughter will improve, and her determination that Pippa should have every chance to do so, is part of the exceptional care she has always provided to her daughter. It was her perfect right to make that decision and Pippa is lucky to have her. Everyone will wish this family strength and peace. PART 2 – CASE SUMMARY About Pippa Pippa is now 5 years old. She was a completely healthy baby but became brain damaged as a result of illness (acute necrotising encephalopathy – ANE) at around age 20 months. She improved and went home for a year and a half but then ANE struck again. She was admitted to the Evelina in January 2019 and remains there at the time of writing. She has a devoted mother (her mother spends 16 hours a day at her bedside), an older brother and a loving extended family. Her father lost a child to meningitis before she was born and, after her first illness, he took his own life. So Pippa’s mother has cared for two bereaved children, one severely disabled, ever since. All the second opinion doctors and experts in the court case agreed about the following. Pippa is in the persistent vegetative state. She has no awareness of herself, anyone or any part of  the world around  her, and cannot communicate or experience pain, discomfort or pleasure. She cannot breathe at all or swallow; she is doubly incontinent and blind. She is incapable of purposeful movement. She has made no progress since January 2019. There is no prospect of any improvement. Pippa’s mother disagrees. She believes Pippa has made good physical and cognitive progress since arriving at the Evelina and that she improves day by day. She loves Pippa and wants Pippa to be cared for at home, where she can be with family and her toys and things, for as long as it is given to her to live. Her respiratory regime is described at length. She has to be turned, moved into the prone position (this needs 2, sometimes 3 people) and management of secretions (by administering and then removing saline and by suctioning) every day. Even with this care expertly delivered in PICU, she desaturates every few hours. Her life could come to an end at any point, or she could live for some years yet with PICU care. The expert evidence was that any care at home would not be of the same standard and life expectancy at home would be limited to months. Any trial of and transition to home care would take 6 months and would be a complicated, resource intense process. The treating team at the Evelina manages 50 patients ventilated in the community. The team simply could not see that it would be possible to care for Pippa safely at home. And it was not prepared to perform a tracheostomy because it did not think any more treatment for Pippa, in any setting, was in her best interests. The judge concluded that the chances of Pippa being able to be transferred to long term ventilation at home were remote. And that it was not in Pippa’s best interests to have continued life-sustaining treatment and therefore not in her best interests to have a trial of treatment at home. The judge’s findings Harm Without Awareness and Without Pain Pippa’s mother’s barristers argued that: ““by definition there is no physical harm caused by the provision of medical treatment to a person with no conscious awareness.”” The judge had no hesitation in dismissing that argument. He separated pain and harm: “Both her ongoing condition and her necessary treatments in the PICU constitute burdens upon her person notwithstanding her lack of conscious awareness. In any event, the absence of pain is not the same as the absence of harm.” He then explained that there are limits: “The fact that a person has no conscious awareness does not give their clinicians, or anyone else, licence to perform procedures on them irrespective of their benefit.” He noted that we do not deny compensation to victims of negligence because they have no awareness: “Compensation payments for “loss of amenity” have been made to patients who are in a coma because the law recognises that even the fully unconscious individual may experience a loss of function and a diminished quality of life even if they do not suffer pain”. Accordingly, the absence of pain does not mean that that is the end of the welfare assessment. The Royal College of Paediatrics and Child Healthcare publishes guidance, called, “Making decisions to limit treatment in life-limiting and life-threatening conditions in children: a framework for practice.” This guidance sets out the circumstances in which it is ethically permissible to withdraw life sustaining treatment. They include situations where although treatment can prolong life, it can’t lessen the burdens caused by the child’s condition or the treatment necessary to sustain life.  If the child’s condition is such that it is difficult or impossible for them to benefit from continued life, withdrawal of treatment can properly be considered. Perhaps with this in mind, the judge found that it was not just that Pippa’s situation caused her a lack of ability to benefit from life, it also burdened her: “It is insufficient to view her condition as depriving her of benefit. Her condition and the treatment it necessitates are significant burdens. Even if one discounted these factors in the welfare assessment, on the grounds that Pippa has no conscious awareness of them, they ought to be taken into account in the broad assessment of her interests. It must be relevant to any assessment of her interests that she has such grave loss of function and requires such intensive and intrusive treatment to preserve her life.” Having found that Pippa’s condition and her treatment for her condition cause her harm, the judge looked at whether even though she has no awareness, the harm should be balanced with other benefits to her. Can there be burdens but no benefits? Some judges, when considering withdrawal of life sustaining treatment from adults, work on the basis that if a person in a minimally conscious state can experience pain then it must follow that they can also experience pleasure, and vice versa. It is unclear whether there is any medical evidence to support that view. Here, the judge asked whether it would be inconsistent to say that a young child with no awareness would suffer burdens but no benefit from more life. He said it would not. That was because the benefits there might be for a young person or adult – such as the affirmation of deeply held values or respect for autonomy – do not apply to a very young child such as Pippa. He could not identify any non-medical benefits for Pippa of prolonging her life on PICU. The Benefits of the Patient’s Life to Others What of the part Pippa plays in family life and the benefit to her of living with those who love her? The judge found that Pippa, as she is now, contributes significantly to the lives of others: “She is an exceptional child who has inspired exceptional behaviour from others: the selfless devotion of her mother, the sacrifices of her brother, the loving support of other family members, the dedication and skill of the PICU doctors, nurses, and therapists. Many people will have learned from Pippa’s life and experiences: doctors, nurses, therapists, and other parents whose children have passed through the PICU at the Evelina.” And he said that the presumption that life should be preserved was uncontroversial. At the same time, that presumption did not determine whether more treatment was in her best interests. Pippa’s best interests, he said, had to be seen from her perspective, not that of the people who love her and want to go on loving her: “Pippa’s condition renders her unaware of the benefits she brings to others. Not only is her welfare my paramount consideration, but it would be wrong, in my judgment, to take into account the welfare of others when determining her best interests.” Dignity The Judge noted that the concept of dignity had influenced one of the experts whose view it was that Pippa should have further life-sustaining treatment. He described dignity as “problematic” and a “subjective and malleable concept”. He said for an older child or adult, dignity might be linked to their exercise of autonomy – that is, the choices they might have made for themselves. But that didn’t apply to a 5 year old because at such a young age the child’s “values, beliefs, and wishes cannot reliably be ascertained or inferred.” The problem with dignity, he said, is that it is such a subjective concept that people can have wildly different ideas of what it means in practice. For example, the hospital thought that a planned withdrawal of ventilation with good palliative care would enable Pippa to die peacefully and with dignity surrounded by her family. In contrast, her mother said:  ““I could not think of anything more undignified than Pippa’s death being planned and for it to be carried out in the corner of the PICU when there is a procedure that can be done to potentially get her out of the ward and home.”” Wisely, the judge avoided the trap of defining, let alone implementing, what dignity means in this situation. He said that given the differing views, he would “not presume to adopt some supposedly objective concept of dignity to determine her best interests.” In short, dignity simply did not help answer the best interests question one way or the other. Parental and Family Rights One of the experts supporting Pippa’s mother’s view of best interests said that it was for parents to decide where their child died: ““It is their right to determine the three most important things: when, how and where does death occur.”” That expert’s view (which reads more like a legal submission) got an emphatic thumbs down from the judge. Yes, doctors must consider the family’s wishes and, where possible, work consensually with the family. But it is the cases where working consensually isn’t possible that come to court. In court: “The law is clear: in these cases it is not a parent’s right to determine when, how and where death occurs, or whether life sustaining treatment should be prolonged. Nor do I accept that the court should consider Pippa’s interests through the prism of her mother’s interests: the court is concerned with Pippa’s best interests which must be assessed from her perspective, not from anyone else’s viewpoint.” Again, he returned to the fact that the court is concerned with the child first and foremost: “Dr Playfor, Dr Wallis, and many other people might think that when a child can feel no pain, the courts should seek a solution that gives the most comfort to the child’s family, and that there is a cruelty in depriving them of that comfort and curtailing the life of the child they cherish. But the law seems to me to be clear that the benefits that Pippa has brought, and may continue to bring, to others, and the satisfaction of the wishes of a child’s family, are not the focus of the court’s attention. It is her welfare that is paramount, not the welfare of others, and her best interests that are the court’s concern.”
No comment yet.
Scooped by Jacqui Gilliatt
Scoop.it!

Civil legal aid scheme only survives on lawyers’ ‘goodwill’, says Bar Council – The Justice Gap

Many people were failing to achieve justice because of an ‘exodus” of lawyers, according to a new report from the Bar Council exposing the ‘hostile climate’ of an underfunded civil legal aid system. The new report, Running on Empty, draws on interviews with barristers and clerks and claims that government cuts were forcing many barristers to ‘stand-in’ for roles that should be done by other public services. ‘You are half social worker, half handler, part counsellor and then advocate,’ said barrister John Edwards. The report identified a ‘new and worrying’ concern that civil barristers feel attacked by the government. Stephanie Harrison QC said, the government does ‘literally see those who practice in legal aid as just a thorn in their side… . [this] is a new and dangerous development of delegitimising and vilifying lawyers who seek to hold the government to account.’ These findings come eight years after the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2013, which took many areas of civil law out of the scope of legal aid, including spcial welfare lawyer, employment, inquests and immigration. The newly-appointed chair of the Bar Council, Derek Sweeting QC, claimed that the civil legal aid system had only survived championed as a result of the ‘goodwill of the legal profession’. He cautioned, however, that ‘this is not a sustainable way to guarantee the future of such an essential service for the public… The Bar Council has consistently called for a reversal of LASPO, which took many areas of legal aid funding out of scope. Eight years later, we continue to see its damaging effects. We now find ourselves pleading for the bare minimum. We urge the Government to heed the findings of this report and seek to meet the Bar’s commitment to social duty and access to justice with some proper investment in, and respect for, the justice system.’ Lawyers describe having to “battle” against decisions of the Legal Aid Agency (LAA), which often feel arbitrary. ‘The process of applying for funding is specifically designed to be hard and to discourage people from bringing cases,’ said Emma Manning, the senior civil practice manager at Garden Court Chambers. The lack of any clear guidance and transparent processes has led to the perception of a ‘culture of refusal’ at the LAA. LASPO has crippled the ability of citizens to access justice and the report highlights the ‘profound impact’ it has had on the legal services sector. The widespread closures of legal advice centres and high street solicitors, for example, makes cases more complex and urgent. Clients no longer have front-line access to good quality, early legal advice which means cases unnecessarily go to court, costing excessive time and money. Jason McDonald, a housing barrister, said: ‘I’m concerned that there’s work out there that is not being addressed because there are deserts in the sense of people not being able to get hold of a lawyer.’ This has led to a dramatic rise in the number of people being forced to represent themselves in court. In 2017/18, only 36% of parties were recorded as having legal representation in private law cases that had at least one hearing, compared to 58% of parties the year before LASPO. The issue of inequality of arms was found mostly pointedly in inquests. Bereaved families are entitled to legal aid in only limited circumstances and decisions on funding are often made late. Junior barristers are paid such low fees that they do not have time to fully prepare a case, despite their unwavering efforts against the odds. Government agencies, on the other hand, often have the benefit of more experienced counsel. Sarah Hemingway, a barrister at Garden Court Chambers said, parents are ‘left with no funding whatsoever, and they’re the ones that are really needing the questions answered … we’re not doing our duty towards them at all’. An underfunded service is causing legal aid lawyers to work 60-70 hours a weeks and there was a concern that work for junior lawyers was becoming ‘unsustainable’. A heavy caseload and costly expenses risks junior lawyers burning out or leaving the profession altogether. ‘The real sadness in me is that when I see younger people now coming to the Bar, I’d never recommend them doing only legal aid work, and that’s a travesty, it’s an absolute travesty,’ said Sonali Naik QC.
No comment yet.