Miscellaneous

Child in need or ‘looked after child’. Why does it matter?

This is a post by Sarah Phillimore.

Teasing out the various issues arising under section 17 and section 20 of the Children Act when it comes to ‘providing accommodation’ and the consequences that flow from that, appears to be yet another example of complicated and confusing statutory provisions which put enormous obstacles in the way of parents being able to understand the process. We must either simplify our laws or increase provision of legal aid. 

What happens to children under 16 who need help from the State with somewhere to live?

Mrs Justice Black SA v KCC [2010] EWHC 848 (Admin)

“There are various provisions of the Children Act 1989 apart from s 17(6) which deal with the provision of accommodation by a local authority. Although this is not the first time I have had to consider this aspect of the Act, I continue to have difficulty in understanding how the various provisions fit together, how it was envisaged that the scheme would work in practice and how it was thought that it would enable local authorities and others to ascertain, relatively simply, whether a child is looked after or not…”

The distinction between ‘in need’ and ‘looked after’

A child can be a ‘child in need’ and get help and services under section 17 of the Children Act 1989. Or a child can be a ‘looked after’ child and get help and services under section 22 of the Act.

The distinction between these two is significant. A ‘looked after’ child gets more help, including a duty on the LA to consider offering support even when she is older than 18. A ‘looked after’ child will also experience more intervention from the LA, for example the statute provides that frequent reviews are required.

The Children (Leaving Care) Act 2000 creates new categories of young people entitled to support.

  • Eligible child – aged 16 or 17 and are currently looked after, either on a care order or accommodated, who has been looked after for a period or periods of 13 weeks since their 14th birthday (this total should include at least one spell of over 4 weeks, but does not include respite). This category defines those who will go on to become Relevant and Former Relevant young people when they cease to be looked after.
  • Relevant child – Aged 16 or 17 (not yet 18) and have left care, having previously been in the category of Eligible child.

There is a duty to financially support them up to the age of 18. The allowances paid to them should not fall below the level of Income Support or Income Based Job Seekers Allowance.

There is a further category of ‘Former Relevant child’ , being those aged 18 to 25 and who have
left care having previously been Eligible or Relevant, or both. The LA is under a duty to consider the need to financially support them.

A ‘looked after’ child is defined at section 22 of the Children Act 1989 as a child who is under a care order OR IF the accommodation provided is by the LA ‘in the exercise of its functions’

‘Functions’ exclude anything done under section 17, 23B and 24B of the Children Act 1989.

Accommodation is only ‘accommodation’ if it is provided for a continuous period of more than 24 hours.

So what does this mean?

Section 17 imposes a general duty on the LA to safeguard and promote welfare of children in their area. This may include providing accommodation.

Section 23B relates to 16-17 year olds and section 24B relates to those who are at least 16.

Therefore if your accommodation is provided under section 17 you are NOT a ‘looked after’ child. We must then look to sections 20 and 23 of the Children Act 1989 to understand what are the relevant ‘functions’ which decide whether or not a child is ‘looked after’.

Section 20(4) is ‘permissive’ . It does not impose a duty on a local authority to accommodate a child but says that they can do so if they think it would promote the child’s welfare and those with PR consent.

Section 20(1) however is mandatory – so a local authority MUST provide accommodation to a child if there is no one who has parental responsibility for him, or no one who can exercise it.

Section 23 is also mandatory and tells the LA that when they are looking after a child they must provided accommodation and other services. Section 23(2) sets out that accommodation can be provided by placing the child with family or any other suitable person. These people will be considered foster carers (so must be assessed and found suitable to meet regulations around standard of foster care) UNLESS that person is the child’s parent or has PR for the child or a Child Arrangements Order.

Further, section 23(6) sets out the LA ‘looking after a child shall make arrangements to enable him to live with’ a parent or person with PR, or a relative, friend or other person connected with him. The LA must also try to find accommodation near to his home and with other siblings (section 23 (7)).

The drafting of this section, as Mrs Justice Black recognises, is confusing and seems to set up different routes into ‘providing accommodation’.

It’s not the label that matters, its the facts and the legal consequences.

R (on the application of M) v London Borough of Hammersmith and Fulham [2008] UKHL 13 made it clear that if the LA claim to be acting under section 17, a child will still be a looked after child if the circumstances are such that the LA should have gone down the section 20 route.

Difficulty has arisen when a child goes to live with a relative and the LA claim that this is a ‘private’ arrangement and therefore not one that should be described as the LA ‘providing’ accommodation. The court is willing to accept that there may be some cases where a LA could ‘side step’ their duty to accommodate by helping to set up a private fostering arrangement.

Private fostering arrangements are dealt with in section 66 of the CA and cover children who are under 16 and cared for in their own home by someone other than a parent, a person with parental responsibility or a relative.  A ‘relative’ is defined under section 105 of the Children Act 1989 as a grandparent, brother, sister, uncle or aunt (whether by blood or marriage) or step-parent.

Has the LA taken a ‘major role’ in making arrangements for the child to be accommodated?

It is a question of fact in every particular case. Where a LA takes a ‘major role’ in making arrangements for a child to be fostered, it is more likely to be considered to be exercising its duties under sections 20 and 23, no matter what it claims is the label to be attached to its actions.

Helpful issues to analyse are likely to be:

  • is the LA attempting to regulate the terms of the placement? for e.g. having a view about the child’s school or who has contact with the child?
  • What is the LA saying about providing financial help for the child? A true private arrangement will be between the parents and the proposed carers who must understand that the parents will be providing financial support.

Does it then matter if the LA argues section 23(2) or 23(6)?

The court said ‘no’ in SA v KCC [2010] and set out a simple approach to the statute. If the child falls within section 20(1) – there is no one with PR or no one who can exercise it – then the LA is providing accommodation for the child regardless of whether or not it finds a home with a friend or relative and regardless of whether or not the LA chooses to accommodate a child under section 23(2) or 23(6).

The LA in that case had tried to argue that whenever a child goes to live with a relative under section 23(6) then such children are not ‘provided accommodation’ unless there is care order in place. The court rejected this ‘rigid position’ as being potentially disadvantageous to the child and ignores the ‘enormous variation that there is in the circumstances of children, and their parents and carers’.

What’s in a name? The right of parents to name their child – when can the state interfere?

I was reminded of the case of C (Children) [2016] EWCA Civ 374 at a recent court hearing where the issue arose about the local authority’s duty to register the birth of a child who is subject to a care order. Hopefully that matter will be subject of some further guidance – my argument being that a failure by a parent to register a birth is an abnegation of parental responsibility, not an exercise of it and therefore the local authority ought to be allowed to register after the required 42 days without needing the court’s permission. 

However the issue of what name a child should be registered with is of much greater significance and It is clear that any argument between parent and local authority must be subject to over sight by the court. But what gives the local authority the right to have an opinion in the first place? To answer this question requires an examination of what happened in C Children.  

How far can the state interfere with a parents wish to register (or not) the birth and name of their baby?

The issue of registering a birth is interesting in the context of care proceedings as there appears to be a view in some quarters that registering a birth makes your baby the ‘property of the state’ and refusing to register means the local authority cannot issue care proceedings. This view has no substance, but of course that doesn’t prevent people from spreading it and believing it.

Registering the birth: the operation of the Birth and Deaths Registration Act 1953

The purpose of the BDRA 1953 is to create a document of public record evidencing all births and deaths in England and Wales. It determines what information is needed to register a child’s brith, who may provide that information and when they must do it.  There is no absolute requirement to register a ‘name’ at the same time as the birth, but provision is made in section 13 BDRA 1953 for the registration of a forename following a delay of up to twelve months or for the alteration of a name during the same period of time:

Section 1(2) BDRA 1953 sets out who is qualified to provide the necessary information to the Registrar; these people are known as “qualified informants”: They are the father and mother, the occupier of the house where the child was born, any person present at the birth or any person having charge of the child.  These ‘qualified informants’ have 42 days from the date of birth to register it

Section 4 BDRA 1953 provides that where, after the expiration of forty-two days, ‘the birth of the child has, owing to the default of the persons required to give information concerning it, not been registered…’, the Registrar can require any qualified informant to attend at a place appointed by the Registrar to give the required information and to sign the register in the presence of the registrar.

So it seems pretty clear from this that the act of registering a birth is an exercise of parental responsibility but is not restricted to actual parents; the focus here is on the proper registration of the birth so that the child can be recognised and identified in the society into which he is born. It is an administrative requirement, not an illustration of something special and particular for parents.

Naming your child – an issue of fundamental significance

if registering a child’s birth is rightly described as a mere administrative act, it is clear that the choice of name for a child is an act of a very different nature and quality and is likely to be of far more emotional importance to most parents.  This exercise of parental responsibility should only be interfered with in exceptional circumstances. As was recognised in C Children at para 40:

One of the first questions asked by friends and relatives following the birth of a child is ‘what is the baby’s name?’ It may be thought that any individual who has had the happy experience of debating with his or her partner possible forenames for their unborn child would be astonished at the proposition that the choice of the name of their child could be regarded as other than their right as the child’s parents, and their first act of parental responsibility. The name given to a child ordinarily evolves over the months of the pregnancy through a bundle of cultural, familial and taste influences. The forename finally chosen forms a critical part of his or her evolving identity….If a baby cannot be brought up by his or her parents, often the forename given to him or her by their mother is the only lasting gift they have from her. It may be the first, and only, act of parental responsibility by his or her mother. It is likely, therefore, to be of infinite value to that child as part of his or her identity….The naming of a child is not however merely a right or privilege, but also a responsibility; people, and particularly children, are capable of great unkindness and often are not accepting of the unusual or bizarre. It does not need expert evidence or academic research to appreciate that a name which attracts ridicule, teasing, bullying or embarrassment will have a deleterious effect on a child’s self-esteem and self-confidence with potentially long term consequences for him or her. The burden of such a name can also cause that child to feel considerable resentment towards the parent who inflicted it upon him or her….

 

Facts of C Children [2016]

So what happened in this case to justify the court refusing to allow a mother to name her children?  This case involved a mother with serious mental health issues. She had a long standing diagnosis of a psychotic disorder and of schizophrenia of an “undifferentiated type with an underlying personality disorder”. She did not accept the diagnosis and thus would not accept any treatment but she was found to have capacity to give instructions in the care proceedings.

Her three elder children had been removed from her care. She then had twin children who were subject to ICOs shortly after birth. Their father was not known; the children were conceived after the mother was raped. She told the midwife she wanted to call the twins ‘Preacher’ and ‘Cyanide’. The local authority tried to persuade her against this but failed – the mother argued that it was a ‘lovely, pretty name’ and that because Hitler killed himself with cyanide, this was a positive connotation.

After some weeks of attempts to change the mother’s mind, the local authority first asked the court to exercise its inherent jurisdiction under s.100 Children Act 1989 to prevent the children being so named but the court did not agree that this was the right route. However, as registering a birth and naming a child were ‘aspects of parental responsibility’, they were actions of a parent which could be limited by the local authority under s.33(3)(b) Children Act 1989. The court then declared that the local authority were allowed to prevent the mother from registering the children with those names.

The mother appealed on the basis that that the judge was wrong in concluding that the naming of the child and the registration of the child’s birth were each an exercise of parental responsibility and that the judge erred in concluding that a local authority has power under section 33(3)(b) CA 1989 to determine that the mother should not register her children’s births with her chosen names. Therefore, it was her human right to choose their names and register them without the interference of the local authority.

The Court of Appeal rejected the mother’s grounds and agreed that the registration of the births and naming of children were acts of parental responsibility, but also that a court could, under its inherent jurisdiction intervene in these circumstances and that the appropriate statutory route was therefore s.100 Children Act 1989.

The first court had not been happy to consider use of the inherent jurisdiction because it did not consider that the test of significant harm was met but King LJ in the Court of Appeal held that some names – such as Cyanide – were so awful that they gave rise to reasonable cause to believe that any child given that name was likely to suffer significant emotional harm. The Court did not have the same objections to ‘Preacher’ but did not think it right for one child to be named by the mother and the other not, so agreed that this name should not be registered either.

Happily in October 2015 the twins moved permanently to live with the foster family caring for their two eldest half siblings live, who chose names that they would like their brother and sister to be called

The limits to what a parent may do to a child under heading of “parental responsibility”.

This case is a useful illustration of the fact that PR while very important and worthy of protection, is not a green light for a parent to do whatever they want.  The Children Act defines “parental responsibility” as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”

In Re H-B (Contact) [2015] EWCA Civ 389, the then President of the Family Division, Sir James Munby P, quoted with approval the judgment of McFarlane LJ in Re W (Direct Contact) [2012] EWCA Civ 999 at para 72: i:

I wish to emphasise this, parental responsibility is more, much more than a mere lawyer’s concept or a principle of law. It is a fundamentally important reflection of the realities of the human condition, of the very essence of the relationship of parent and child. Parental responsibility exists outside and anterior to the law. Parental responsibility involves duties owed by the parent not just to the court. First and foremost, and even more importantly, parental responsibility involves duties owed by each parent to the child.

The foundation of the exercise of PR is therefore those acts which contribute to or secure the welfare of the child. Refusing to register your child’s birth or giving a child a name that many others are likely to find offensive or ludicrous is an abnegation of PR, not an exercise of it and parents have no ‘right’ to do harm to their child.

 

 

Communicating with the Home Office in family proceedings.

COMMUNICATING WITH UK VISAS AND IMMIGRATION (UKVI)
IN FAMILY PROCEEDINGS

Protocol agreed between the President of the Family Division and the Home Office issued on 16 May 2018

1 This Protocol enables the family courts (the Family Division of the High Court of Justice and the Family Court) to communicate with UK VISAS AND IMMIGRATION (UKVI), the relevant division of the Home Office, to obtain immigration and visa information for use in family court proceedings. Although it replaces and supersedes the previous guidance issued in 2002, 2004, 2006, 2010 and 2014, in particular to reflect new UKVI processes and contact details, it does not alter the nature or purpose of the Protocol.

2 There are three parts of the process:

(1) HMCTS form EX660 (rev 04/18), a copy of which is annexed to this Protocol, must be completed by the parties and approved by the judge.

(a) The EX660 must be typed, not handwritten.
(b) The EX660 must be completed in full, specifying the details of the relevant family members and their relationship to the child(ren). Details of both mother and father/adoptive parents if known should be provided, whether or not they are involved in the proceedings, as this enables UKVI to trace the child(ren)’s records.
(c) The EX660 and the order must specify the questions the court wishes to be answered by UKVI.
(d) The EX660 must contain the name and contact details of someone who has agreed and is able to provide further information if needed.
(e) The EX660 must clearly state the time by which the information is required.

Failure to do this may cause delay in the time it takes UKVI to process the request.

(2) An order in the relevant form, a copy of which is annexed to this Protocol, must be drawn up, approved by the judge and sealed by the court.

(a) The order must clearly state the time by which the information is required.
(b) The order must specify any additional information or documents, such as a synopsis, which it wishes UKVI to have and set out in the order that the leave of the court to make disclosure to UKVI has been given. (Note that it may be a contempt of court to disclose this information otherwise.)

(3) The UKVI SVEC pro-forma must be completed by the court staff utilising the information in the EX660 and the order.

(a) All relevant fields in the SVEC pro-forma must be completed:
i. Section A – All fields to be completed if known
ii. Section B – Enquiry Type – Select Standard
iii. Section C – Select Subject 1 and complete all fields.
iv. Section D – Enter “Y” in “Other ” field only.
v. Section E – Enter ” Please refer to court order and EX660″.
vi. For more than one subject, select subject 2 and so on, completing steps C-E for each one.
(b) In Section B there are two fields, “Court date” and “required date”, which must be completed. In both fields the date the information is required should be entered, not the court date. These fields generate the target date on UKVI systems and, as the information ordered by the court will be required before the date of the court hearing, this will ensure that the information is provided in time.

3 The EX660 and the order must contain sufficient information to enable UKVI to understand the nature of the case, to identify whether the case involves an adoption, and to identify whether the immigration issues raised relate to an asylum or a non- asylum application.
4 In order to comply with the agreed four (4) week period for UKVI to provide a response to the court, the sealed order should be available to be sent by the court staff to UKVI on the same day that the order is made. Where that is not possible, the court, when stating the required date of receipt by the court of the information requested, must allow any additional time necessary for the preparation, sealing and sending of the order. This is to ensure that UKVI has four (4) weeks to provide a response from the time it receives the order.
5 The sealed order, completed EX660 and SVEC pro-forma should be sent immediately by the court to ICESSVECWorkflow@homeoffice.gsi.gov.uk including EEREQUEST on the subject line of the email. The request for information will be rejected by UKVI if either the sealed order or the SVEC pro-forma is not provided.
6 Where the court wishes to progress a case that may be delayed, it may send an email to SVECManagement@homeoffice.gsi.gov.uk
7 The UKVI official will be personally responsible for either:
(i) answering the query themselves, by retrieving the file and preparing a statement for the court; or
(ii) forwarding to a caseworker or relevant official with carriage of the particular file.
8 UKVI will ensure that their information is received by the court in time, as instructed by the judge or court making the request.

James Munby, President of the Family Division

Multi Agency Response to children living with domestic abuse

Regular contributor @DVHurts writes about the recent report investigating the multi agency response to children living with domestic abuse. Some good practice is noted but also criticism of practices that do not keep children safe, such as written agreements that do not focus on the perpetrator as the source of the abuse and therefore the risk. 

I am highlighting a recent joint inspection report by OFSTEAD, HMICFRS, Care Quality Commission and HM Inspectors of Probation, into the multi agency response to children living with domestic abuse. You can read the whole report here.

This report is about the second joint targeted area inspection programme, which
began in September 2016 and which examined ‘the multi-agency response to
children living with domestic abuse’. The findings in this report consider the extent to
which, in the six local authorities inspected, children’s social care, health
professionals, the police and probation officers were effective in safeguarding
children who live with domestic abuse. The report calls for a national public service
initiative to raise awareness of domestic abuse and violence. It also calls for a
greater focus on perpetrators and better strategies for the prevention of domestic
abuse.

It raises the question whether a public health campaign similar to drink driving or drug awareness should be rolled out considering the enormous human and financial cost of domestic violence:

There needs to be a public service message aimed at reducing the prevalence of
domestic abuse as part of a long-term strategy. The focus of this public service
message needs to be on those perpetrators who have offended or might offend, and
to communicate a better understanding of the behaviour and attitudes of those
perpetrating abuse.

Once again firefighting by services, rather than prevention is highlighted:

Work with families that we saw on inspection was often in reaction to
individual crises. Agencies can be overwhelmed by the frequency of
serious incidents, particularly higher risk ones. However, keeping children
safe over time needs long-term solutions.

There was criticism on the concentration on the victim, rather than the perpetrator by services:

A pattern emerged that suggests agencies focus on the victim as the only solution.
In the worst cases, agencies placed an inappropriate attribution of responsibility on
the mother to protect her children. The end of an abusive relationship was
considered to reduce the risk to children, when in fact research tells us that
separation can escalate risk.
Most agencies did not focus on the perpetrator of the abuse enough. Instead, they
focused on removing the family from the perpetrator, leaving them to move on to
another family and, potentially, a repeated pattern of abuse.

On a more positive note, the inspectors highlighted several areas of good practice , including midwifery, in particular staff who are not frightened to ask the awkward questions:

In Hounslow, for example, inspectors praised the ‘One Stop Shop’ service
for parents who are subject to domestic abuse. The service is open one
morning a week. Parents can access a range of services, advice and
support from various professionals including legal advice, support from an
independent domestic violence adviser (IDVA), children’s social care, the
police, housing, substance misuse support, a refuge worker and an
independent sexual violence adviser. Inspectors noted that:
‘parents are gaining an understanding of the impact of living with
domestic abuse, leading to their being better able to meet the needs of
their children and keeping them safe’.

On the other hand there was criticism of practice that was highly unlikely to keep children safe:

Some of the thinking and practice we saw with victims in contexts of coercive
control were clearly inappropriate. This included the use of written agreements
that placed responsibility for managing the risk to children with the victim.
Written agreements are similar to written contracts, where social workers and
parents agree a set of terms that the parents sign. The terms may include
things like, the victim will not continue a relationship with her abusive partner,
she will not allow him into the house, she will not be in contact with him, and
so on.

The use of written agreements in two of the six local authorities was
widespread. However, we saw no evidence that they are effective. Given that
the focus of written agreements is often not the perpetrator who is the source
of the abuse and therefore the risk, it is unsurprising that they are ineffective.

Then something that a number of woman will relate to, and is often the subject of comments on this blog( not just from me):

 

Some of the women we spoke to in our focus groups described how their abusers used their distress as evidence that they were unstable. Often the women believed they were regarded as having mental health conditions or of being emotionally incapable of caring for their children. In one case, this resulted in a mother being evicted from her home and her partner being given sole custody of her children, whom she did not see for several months. Eventually her abuser, who had a severe alcohol addiction, was evicted and custody returned to the mother

Untangling this web and being consistent in identifying who needs to be held
responsible, and for what, will always be challenges for professionals. We found
instances of language being used that incorrectly held victims responsible for
the risk of domestic abuse. For example, we saw reports that described an
abusive situation as a ‘lifestyle choice’ and reports stating that victims had
learnt to ‘make better relationship choices’. We also found instances of
the multi-agency response to children living with domestic abuse
inappropriate practice, including a police log that had been updated to state
that a safeguarding visit would not be completed because both parties were ‘as
bad as one another’.

A lack of focus on perpetrators can lead to a short-term view of risks. We saw examples of swift action being taken to secure the immediate safety of the
victim and children, without any action being taken to address the root causes
of the perpetrator’s behaviour. In temporarily resolving the immediate incident,professionals can lose sight of the greater risks posed in future.

One survivor of domestic abuse told us:
‘I called the police on him multiple times and they just kind of patted him
on the back and said ‘calm down son’. And I’m like, ‘he’s just thrown me
down the goddamn stairs’.

It is a comprehensive, readable report and has been reported on elsewhere: http://www.communitycare.co.uk/2017/09/21/written-agreements-still-common-part-child-protection-practice/

http://www.telegraph.co.uk/education/2017/09/19/domestic-abuse-victims-ignored-police-officers-see-lifestyle/Mul

Non molestation orders made without the other party present

This is Practice Guidance issued by the President of the Family Division on 18 January 2017

Family Court – Duration of Ex Parte (Without Notice) Orders

This Guidance was originally issued on 13 October 2014. This revised Guidance, issued on 18 January 2017, supersedes the previous Guidance.

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

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

3 Subject only to paragraph 8, the same principles, as set out below, apply to all ex parte (without notice) injunctive orders made by the Family Court or by the Family Division, irrespective of the subject matter of the proceedings or the terms of the order.
4 The law is to be found in Horgan v Horgan [2002] EWCA Civ 1371, paras 5–6 (Ward LJ), R (Casey) v Restormel Borough Council [2007] EWHC 2554 (Admin), paras 37–41 (Munby J), In re C (A Child) (Family Proceedings: Practice) [2013] EWCA Civ 1412, [2014] 1 WLR 2182, [2014] 1 FLR 1239, para 15 (Ryder LJ) and Re A (A Child) [2016] EWCA Civ 572, [2016] 4 WLR 111, paras 49-61, esp paras 59-61 (Munby P).

5 The relevant principles, compliance with which is essential, are as follows:
(i) An ex parte (without notice) injunctive order must never be made without limit of time. There must be a fixed end date. It is not sufficient merely to specify a return day. The order must specify on its face and in clear terms precisely when it expires (eg, 12 noon on 20 March 2017).
(ii) The order must also fix a return day. The order must specify the date, time and place of the hearing on the return day. The return day should normally be no more than 14 days after the date when the order was made. How long the hearing on the return day should be listed for must be a matter for the discretion of the judge. However, having regard to paragraph 6, often a very short listing may well be appropriate.
(iii) Careful consideration needs to be given to the duration of any order made ex parte (without notice). Many orders will be of short duration, typically no more than 14 days. But in appropriate cases involving personal protection, such as non-molestation injunctions granted in accordance with Part IV of the Family Law Act 1996, the order itself can be for a longer period, such as 6 or even 12 months, provided that the order specifies a return day within no more than 14 days. This must be a matter for the discretion of the judge, but a period longer than 6 months is likely to be appropriate only where the allegation is of long term abuse or where some other good reason is shown. Conversely, a period shorter than 6 months may be appropriate in a case where there appears to be a one-off problem that may subside in weeks rather than months.
(iv) The order must make it clear that (a) it was made in the absence of the respondent and that the court has considered only the evidence of the applicant and (b) the court has made no finding of fact. Where the evidence is written, it must be identified in the order. Where, exceptionally, the court has received oral or other evidence (eg, a photograph) that evidence should be recorded on the face of the order or reduced to writing and served with the order.
(v) Where the order has been made in accordance with Part IV of the Family Law Act 1996 it must recite that the court has had regard to sections 45(1) and (2) of the Act.
(vi) The order (see FPR 18.10(3)) ‘must contain a statement of the right to make an application to set aside or vary the order under rule 18.11.’ The phrase ‘liberty to apply’ is not sufficient for this purpose. The order must spell out that the respondent is entitled, without waiting for the return day, to apply to set aside or vary the order.
(vii) If the respondent does apply to set aside or vary the order the court must list the application as a matter of urgency, within a matter of days at most.

6 Experience suggests that in certain types of case, for example, non-molestation or other orders granted in accordance with Part IV of the Family Law Act 1996, the respondent frequently neither applies to set aside or vary the order nor attends the hearing on the return day.
(i) When, in such cases, there is no attendance by the respondent and the order, having been served, does not require amendment there is no need for re-service. The order made on the return should however record that the respondent, although afforded the opportunity to be heard, has neither attended nor sought to be heard.
(ii) If, however, variation of the original order is sought by the applicant (eg by extending the ambit or the duration of the order) then:
(a) Paragraphs 5(i), (iii)-(v) must be complied with in relation to the new order and the new order will need to be served.
(b) Unless, before the return day, the respondent was given proper notice of the proposed amendments, either in the application or in the initial order, (a) the new order must specify a new return day, and (b) paragraph 5(ii) must be complied with in relation to the new order.

7 I remind all practitioners and judges of the principle, which applies to all ex parte (without notice) injunctive orders made by the Family Court or by the Family Division, irrespective of the subject matter of the proceedings or the terms of the order, that a without notice application will normally be appropriate only if:
(a) there is an emergency or other great urgency, so that it is impossible to give any notice, however short or informal, or
(b) there is a real risk that, if alerted to what is proposed, if ‘tipped off’, the respondent will take steps in advance of the hearing to thwart the court’s order or otherwise to defeat the ends of justice. In an appropriate case this can justify the grant of a non-molestation injunction without notice, lest the respondent, having been served with an application, further molests his (or her) victim or exerts pressure on her (him) to abandon the proceedings.

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

Sir James Munby
President of the Family Division

Match Mothers

Match Mothers  is a charity, run by volunteers, which supports mothers apart from their children, for whatever reason:

  • You have been through divorce and family breakdown
  • Your child has been fostered, taken into care or adopted
  • You are a mother in prison
  • Personal reasons or choice
  • Religious and cultural
  • Your child has been abducted

 

What it offers

It offers uncritical support, from other mothers who are in similar situations. There is an annual membership fee , but there are concessions for those on low incomes. The first line of support is online, via the website where there are various sources of information available including about family courts and links to resources. Members can also contact each other via the forum, either in a public post or a private message. There is also a private Face book group, which is strictly available for members only. In addition there are a number of local support groups where members can meet face to face and a pen friend matching service. There are two get together’s a year, free to attend, one in the South and one in the North of England, which are very social able meetings with fantastic raffles.

Why it helps?

It can be very isolating being a mother apart from your children. There is still significant stigma, mothers apart being judged far more harshly than their male counterparts. Just realising that you are not the only one is a relief. More experienced members can offer their personal experience in trying to either maintain contact or offer you hope for the future.
A monthly newsletter, offers members a chance to tell their stories and shares relevant topics that may be of interest to members on subjects such as parental alienation .
Members have also taken part in research and shared their stories with journalists who have contacted Match Mothers which has increased awareness.

How to contact ?

enquiries@matchmothers.org

McKenzie Friends Consultation – the Response of the CPR site

In February 2016 the Lord Chief Justice issued a consultation paper about the court’s approach to McKenzie Friends. Responses are required by May 29th. This post sets out the response from the CPR site and is written by Sarah Phillimore.

The Consultation sets out an explanation of what is a McKenzie Friend (MKF) and what previous guidance there has been from the courts about how to deal with them.  A MKF is someone who assists a litigant in person [LiP] in respect of legal proceedings. They are generally not qualified lawyers and got their name from the case of McKenzie v McKenzie [1970] 3 WLR 472. They are usually allowed to help LiPs but it is at the court’s discretion and the LiP will have to seek the court’s permission if involved in cases concerning children, which are not usually held in open court.

The strict definition of a MKF applies only to to someone providing a LiP with ‘reasonable assistance’ (moral support, taking notes etc) but it is also often used to describe individuals who are granted rights of audience on a case by case basis. Thus the terminology is potentially unclear.

Guidance was issued in 2004, 2008 and in 2010 about MKFs. There has since been a rise in  both the numbers of LiPs, in response to cuts to legal aid funding, and an increase in the number of MKF who were offering services for a fee – commonly known as ‘Professional McKenzie Friends’. Therefore there is a need for current guidance to be re-visited.

For further information about MKF and what other options are available to LiPs see this post ‘ What if I don’t have a Lawyer?

The Consultation is limited to three issues:

  • Codifying in the Civil and Family Procedure Rules the practice and procedure relating to MKF;
  • Issuing further guidance to maximise the positive benefits and minimise the negative effects MKF bring to the administration of justice;
  • Replacing the term ‘MKF’.

Question 1: Do you agree that the term ‘McKenzie Friend’ should be replaced by a term that is more readily understandable and properly reflects the role in question?

I accept that terms should be used that are clear and precise and the current terminology is not fit for that purpose.

Question 2: Do you agree that the term ‘court supporter’ should replace MKF. If not, what other term would you suggest?

The suggested replacement of ‘court supporter’ is neither clear nor precise.  It implies that the support is being given to the court, not the LiP. ‘Lay assistant’ or ‘litigant supporter’ is better as it puts the focus on what the MKF is supposed to be doing – assisting the LiP.

 

Primary Danger – MKF who have axes to grind or who just don’t understand what they are supposed to be doing.

Questions 3 – 8 appear to be directed at what I believe is the primary danger posed by ‘rogue’ MKF – namely, the lack of regulation and the corresponding lack of information/publicity about those who are dangerous.

Question 3: Do you agree that the present Practice Guidance should be replaced with rules of court?

Yes. And predominantly for the reason set out at 4.10(iii) of the Consultation. Rules of court would:

provide great clarity concerning the courts’ powers to refuse to permit individuals to act as MKF, to continue to act as such where they are providing poor quality assistance, or to bar them from acting as such in the future in order to provide better protection for LiPs and to better protect the due administration of justice.

This goes to the heart of concerns expressed about MKF by me via the CPR site. There is a small but significant group of people who purport to be MKF but who act in ways that are extremely damaging to the LiPs interest in family court proceedings. This is largely due to the belief expressed by these individuals that the family justice system is corrupt and, for example, operates according to ‘targets’ to steal children from loving families. [For further discussion of that issue, see our post on ‘Forced Adoption’]

These individuals not only cause distress and damage to the individuals unlucky enough to receive their assistance, cause public money and court time to be wasted, but also have a much wider and chilling impact on public confidence in the system due to their additional activities of campaigning, both on the street and via the internet.

For example, note the hearing in February 2016 reported in the Law Society Gazette that Sabine McNeill and Belinda McKenzie avoided incurring costs of £2,000 for their misconceived application for judicial review within care proceedings. Both are heavily involved in other family cases where their attempts to assist parties have had negative consequences for both the individual and the proceedings. See for example the judgement of Mrs Justice Pauffley in the case of re P and Q (Children: Care Proceedings: Fact Finding) [2015]  EWFC 26 (Fam), where the negative impact of the activities of McNeill and McKenzie in promoting false allegations of ritual santanic abuse, spread to the wider Hampstead community.

They are not the only ones whose activities cause me serious concern, but they are among the most prolific. There does not appear to be any easily accessible mechanism to allow for dissemination of information regarding the activities of such people. My concern is that a great many vulnerable people lack access to the necessary information to enable them to make safe choices.

[EDIT March 2019 – Sabine McNeill is now serving a term of 9 years imprisonment for her persistent harassment of the parents in Hampstead]

This is in my view the primary danger of the current system of unregulated and unmonitored provision of services by MKF. This danger could be addressed to some degree by the suggestion at para 4.10(v) to:

allow a clear, plain language guide to the law that sits outside the rules and which is specifically drafted to aid LiPs and MKF… it could provide a greater degree of clarity and place the proper extent of and role played by MKF in a more positive light…

Standard Notice form, Codes of Conduct and Plain language guides

Therefore I agree that a standard notice form (question 5) together with a Code of Conduct (see question 6) would be very useful, together with a plain language guide (see Question 7) setting out what MKF can and cannot do. This will help both MKF and LiPs to understand the nature and parameters of their roles and allow the court to have necessary information in advance about who they are dealing with.

I suspect that a non judicial body needs to take the lead in drafting such guidance (Question 8) as there is always a risk that guidance drafted by lawyers reflects the language of lawyers – which is not always helpful.

Question 4: different approaches in family/civil litigation

I have no particular view on this.

Question 9: Do you agree that codified rules should contain a prohibition on fee-recovery?

Provided the issues raised above, concerning monitoring of MKF and proper sanctions for those who need them, I do not have any particular concerns about MKF who charge for their services.

 

EDIT The Response is finally published on February 25th 2019.

Read the response here. 

It’s recommendations are short

  • The question of the reform of the courts’ approach to McKenzie Friends is one on which, as the consultation demonstrates, there are varying strongly held views. The growth in McKenzie Friends has coincided with the period following the enactment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The government has been reviewing the impact of the changes to the availability of legal aid. JEB conclude that the growth in reliance on McKenzie Friends, and particularly fee-charging ones, should be considered in the context of the impact of those changes. It is for the government to consider appropriate steps to be taken to enable LiPs to secure effective access to legal assistance, legal advice and, where necessary, representation.
  • The role of the judiciary is to apply the law concerning the provision of legal assistance, the light to conduct litigation and rights of audience according to the law established by the Legal Services Act 2007, the common law and precedent.
  • as are professional lawyers. The statutory scheme was fashioned to protect the consumers of legal services and the integrity of the legal system. JEB’s view is that all courts should apply the current law applicable to McKenzie Friends as established by Court of Appeal authority.
  • The Lord Chief Justice and JEB refer this consultation response and the annex summarising the views expressed in the consultation, to the Lord Chancellor.
  • Question 7 in the consultation paper concerns the provision of a Plain Language Guide for LiPs and McKenzie Friends. JEB support the view that a plain language guide could be produced by a non-judicial body for the assistance of LiPs. The judiciary continues to support the promotion of public legal education which would be aided by such a guide.
  • Finally, the Lord Chief Justice and JEB note that the current Practice Guidance on McKenzie Friends has not been revised or updated since it was issued in 2010. To ensure that it properly reflects the current case law, it should now be updated and re-issued.”

The Transparency Project comment here . They say, and I agree:

In February 2016, the Lord Chief Justice and the Judicial Executive Board issued a consultation entitled “Reforming the courts’ approach to McKenzie Friends”. Three years later, during which the problems causing and resulting from the proliferation of unregulated fee-charging McKenzie Friend services have steadily got worse, they have responded with a series of recommendations that basically involve blaming the government for the problem and suggesting that the government, not the judiciary, should sort it out.

The reason why this is feeble is that the whole idea of McKenzie Friends was basically invented by judges (in a case called McKenzie v McKenzie [1971] P 33; [1970] 3 WLR 472, in the Court of Appeal), the judiciary are responsible for what McKenzie Friends are allowed to do in court and have given Practice Guidance on the matter, yet now they are saying the problem is someone else’s to deal with.

A few days later i was sent a link by a parent to a site called Prevent Intervention Now! – protecting your family against social services. 

Under the heading ‘Help! we are under threat from social services’ ‘advice’ is given from the dodgy to the downright dangerous – see Rule 3 ‘never split from your partner’ . On its fees page it charges parents €1,200 for an appeal, going up to €2,000 for ‘full case management’. This clearly isn’t a charity.

Brian Rothery of Ectopia.com appears to be one of those behind this site.  Happily the Ectopita site is not available and appears to be ‘under construction’ . Rothery is a key player in the network of those who persuade parents to leave the jurisdiction if facing care proceedings, along with John Hemming and Ian Josephs. The damage that this can do to parents’ wish to care for their children and the dangers in which it places them are clear to see – i have commented about this further here. 

The JEB say they are

deeply concerned about the proliferation of McKenzie Friends who in effect provide professional services for reward when they are unqualified, unregulated, uninsured and not subject to the same professional obligations and duties, both to their clients and the courts…

Everyone should be worried. We are sitting back and letting parents be victims. Some MKF may have hearts in the right place but others are clearly unprincipled sharks who are out to make money off someone else’s trouble, and offering dreadful and damaging advice along the way. We should not be allowing this to happen.

 

 

End of Year Review 2014

How did we do? What else can we do?

We think our first nine months have shown a clear demand for this site – and worryingly that some of the most popular searches and posts have been do to with section 20 agreements, which suggests that these are both widespread and not well understood or explained.

We hope to expand the activities of the site next year – The Transparency Project will be hosting a multi-disciplinary conference on June 1st, asking if the child protection system is fit for purpose. CPR will also be going to the 2nd Joint Nordic Conference in Helskini in June where Sarah Phillimore will deliver a paper entitled ‘The courage to communicate and the necessary building of relationships between social workers and parents.’

Please let us know what we could be doing better/differently/more or less.

Contact us at childprotectionresource@gmail.com or via Twitter @C_P_Resource.

This site would not have been possible without the very generous contributions of their time and expertise from a great many people in many different fields. As ever, enormous thanks and gratitude is due to them all.

Overview 1st March – 22 December 2014

  • Sessions                                           35,119
  • Users                                                25,742
  • Pageviews                                        60,763
  • Pages / Session                               1.73
  • Avg. Session Duration                    00:02:25
  • Bounce Rate                                    75.07%
  • % New Sessions                              72.68%
  • New Visitor/Returning Visitor       27.3%/72.7%

 

Where did our audience come from?

We had visitors from all over the world, but the vast majority from the UK, as reflects the site’s content.

  • United Kingdom 31,158 (89%)
  • United States 1,418 (4%)
  • Australia 371 (1%)
  • Ireland 232 (0.66%)
  • Canada 217 (0.62%)
  • Brazil 193 (0.55%)
  • Netherlands 108 (0.31%)
  • Germany 78 (0.22%)
  • Finland 74 (0.21%)
  • France 74 (0.21%)

Where in the UK?

  • London 8,579 (24%)
  • Bristol 1,551(4.%)
  • Manchester 843 (2.%)
  • (not set) 796 (2.%)
  • Birmingham 712 (2.%)
  • Newcastle upon Tyne 683 (2%)
  • Liverpool 582 (2%)
  • Leeds 546 (1%)
  • Cardiff 504   (1%)
  • Sheffield 417 (1%)

How did people find us?

71% of traffic came from internet searches. Other sites have linked to us.

  • mumsnet.com 1,943 (33%)
  • Facebook 1,198 (20%)
  • Twitter 1,066 (18.%)
  • suesspiciousminds.com 290 (5%)
  • netmums.com 213 (4%)
  • familylawweek.co.uk 81 (1%)

 

What did they want to read about?

Top Ten internet searches

Annoyingly easily the most popular term was ‘not provided’ at 20,598 being 83% of the total. Of the other keywords, these were most often used:

  • interim care order 175 (0.71%)
  • section 20 care order 84 (0.34%)
  • section 20 child protection 61 (0.25%)
  • child protection resource 38 (0.15%)
  • section 20 agreement 32 (1%)
  • threshold criteria care proceedings 32 (0.13%)
  • forced adoption 29 (0.12%)
  • interim care orders 26 (0.10%)

What posts were the most popular?

The most popular was not set at 8,817 views (15%).

  • category/the-law/key-legal-principles/section-20-agreements/ 4,087 (7%)
  • tag/interim-care-orders-2/ 2,879 (5%)
  • forced-adoption/ 2,459 (4%)
  • category/the-law/key-legal-principles/threshold-criteria/ 2,311 (4%)
  • If I report mental health issues / 2,093 (3%)
  • category/the-law/key-legal-principles/interim-care-orders/ 1,627 (3%)
  • category/the-law/key-legal-principles/significant-harm-key-legal-principles/ 1,591 (3%)
  • common-concerns-we-hear-from-parents/ 1,521 (3%)
  • category/placement-and-adoption-orders/ 1,057 (2%)

Family Law Class at the Bristol Civil Justice Centre

 

 

The Bristol Civil Justice Centre is going to be trying different ways to help people involved in family law cases who can’t get access to legal representation or who want to understand more about what is going on .

One part of this initiative is the proposal for ‘Family Law Classes’  The first will be held on 4 December 2014 from 10:30 -12 noon.

HHJ Wildblood QC, some lawyers and some Court staff will hold a meeting for members of the public at which they will explain the law and procedure

The class will take place in Court 2, 2nd floor,

Bristol Civil and Family Justice Centre, 2 Redcliff Street, Bristol, BS1 6GR.

Please e-mail rebecca.cobbin@hmcts.gsi.gov.uk if you would like to attend the class.

 

Disclaimer

Please note that whilst we can give an overview of family law and explain court processes and forms, we cannot give legal advice on individual cases.