Friday, 31 August 2007

Boston Legal's Denny Crane

My current legal hero, Denny Crane whose motto is :"pull a rabbit out of your hat. That's the secret both to trial law and life." I could have done with that rabbit today.

Mr Blog and I are working our way through the first series on dvd & he is back from his travels tonight so I feel an episode coming on.

If you want to know more have a look at the Boston Legal website

Thursday, 30 August 2007

What the UK Judges have said about parental responsibility

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Here is what the Judges have said in favour of parental responsibility:

Lord Justice Balcombe (in Re G (A Minor) (Parental Responsibility Order) 1994 1 FLR 504):

“The purpose of a parental responsibility order is to give the unmarried father a ‘locus standi’ in the child’s life by conferring on him the rights which would have been automatically his by right had he been married to the mother at the time of the child’s birth. The making of such an order would enable the father to contribute to the promotion of his daughter’s welfare and to play the natural part of her father in her future, although it did not give the father any rights of either residence or contact; and in the present case, the child remained in the care of the local authority, with contact being at its discretion.”

Lord Justice Wall (in Re S (Parental Responsibility) 1995 2 FLR 648):

“There is another important emphasis I would wish to make. I have heard up and down the land, psychiatrists tell me how important it is that children grow up with a good self-esteem and how much they need to have a favourable positive image of the absent parent. It seems to me important, therefore, wherever possible, to ensure that the law confers upon a committed father that stamp of approval, lest the child grow up with some belief that he is in some way disqualified from fulfilling his role and that the reason for the disqualification is something inherent which will be inherited the child, making her struggle to find her own identity all the more fraught”

Here are some examples of cases when PR was refused:

Re M (Contact: Parental Responsibility) [2001] 2 FLR 342 : it would be too stressful to mother and undermine her ability to care for their child. The child was severely disabled, with cerebral palsy affecting all 4 limbs, virtually blind & suffered from seizures. The relationship between the parents was highly acrimonious. The father accused mother’s new partner of sexual abuse without any foundation and violence. The risk was that he would misuse PR;

Re H (Parental Responsibility) [1998] FLR 855: the father had injured his child with extensive bruising to the body including the child’s penis and had bruised another child by hitting him. His behaviour was described as cruel with an element of sadism;

Re P (Parental Responsibility) [1998] 2 FLR 96: father, aged 78, was found to be in possession of obscene photographs of children. He had met the mother when he was in his 60s and she was 15. He also made false allegations of sexual abuse and had videoed the child while he was encouraging her to talk about it;

Re P(A Minor) (Parental Responsibiity) [1997 2 FLR 722]: father in prison for a long sentence following a string of robbery offences.

Wednesday, 29 August 2007

Newly discovered UK family law blog

I am delighted to have stumbled across another family law blog Pink Tape , written by a fellow barrister. I think I can still claim to be the first but no longer the only.

Tuesday, 28 August 2007

Changing residence when contact is frustrated

In an earlier post I mentioned a couple of cases where the court had made orders moving the child from mother to father because contact was not happening. One of the cases, C (A Child) [2007] EWCA Civ 866 , is now online on the Family Law Week site.

How does the UK family court decide whether a father should be given parental responsibility?

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In any decisions about what is right for a child, the welfare of the child is paramount.

The court must consider the ‘welfare checklist’. It must consider:-

• the ascertainable wishes and feelings of the child in light of his age and understanding;
• the physical, emotional and educational needs;
• the likely effect on him of any change in his circumstances;
• his age, sex, background and any characteristics of his which the court considers relevant;
• any harm which he has suffered or is at risk of suffering;
• how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, of meeting his needs;
• the range of powers available to the court under the Children Act.

The court must also consider:-
• whether the father has a genuine child-centred motive for wanting it;
• whether the father has shown a commitment to the child (for example, by keeping up contact and a relationship with the child);
• whether there is a significant relationship between the father and the child.

Some facts are usually more important than others when looking at whether a father should have parental responsibility.

For example, a father who does not pay any money towards the child’s maintenance will not necessarily be refused parental responsibility just because of that. He may not be able to pay, because he is on income support. The parents may be in the process of a divorce and the money side of things has not been sorted out. Sometimes a mother has refused to accept any money from the father. Very often parents get locked in a vicious circle – one parent will not pay, the other parent will not allow contact. The courts try to ensure that money and children are kept separate.

The fact that a father has not had contact for a long time may go against him. However, he might be able to show the court that he was asking the mother to have contact and she was refusing. He may not have known that he had a child at all. He may have been mentally ill and not in a position to ask for contact. It will go against him if he cannot show a good reason to the court. But PROs have still been made even when the father is not having any contact at all.

A father who has been violent to the mother may be on thin ice, especially if the child knew about it. All will depend on his attitude about his behaviour. A father who can show that he is sorry for his behaviour and has made some efforts to change will be in a stronger position. For example, he might have been violent partly because he was taking drugs or drinking heavily. If he has sorted himself out, the court may accept that he is now a reformed character. A father who cannot be trusted to behave in a reasonable way when dealing with a mother is not likely to get parental responsibility.

A father who has been violent to a child, or has sexually abused a child is not very likely to get parental responsibility.

The reality is that fathers who apply for parental responsibility will normally get it, unless they have done something really outrageous.

Friday, 24 August 2007

How Long Does Parental Responsibility Last in UK Family Law?

Parental responsibility only lasts as a legal concept until the child is 18 or if the child marries between 16 & 18, on marriage or until an adoption order is made.

A mother will always have parental responsibility until the child is 18 unless an adoption order is made.

A married father is in the same position.

An unmarried father’s parental responsibility may be ended by a court order or as a result of an adoption or placement order. The same applies to any other person who acquires PR by PR agreement or order. The child or any other person with PR may apply to terminate PR.

A local authority will lose parental responsibility as soon as a care order is ended unless it has a placement order.

If a residence order is made, parental responsibility only lasts as long as the residence order.

A Special Guardian will lose PR if the order for special guardianship is discharged.

Thursday, 23 August 2007

The inevitability of a court case

A reasonable man can get out of most any trouble, except marriage, without going to law.

Charles Darling, Scintillaw Juris, 1877

Wednesday, 22 August 2007

What Does Parental Responsbility Mean in UK Family Law?

Parental responsibility is defined in the Children Act 1989 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’.

Cases decided by the courts have given us some idea of what this means.

• making choices about a child’s religion;
• making choices about a child’s education;
• deciding what name a child should be known by;
• making decisions about a child’s medical treatment (including blood tests);
• asking for copies of records about the child’s medical treatment and education;
• disciplining the child;
• deciding where a child should live and who a child should spend time with;
• deciding whether a child should be able to go out of the country, perhaps for a holiday;
• looking after the child generally;
• deciding whether any information about the child should be made public;
• making decisions about what should happen to any property belonging to the child.
• deciding whether someone else should look after a child or make decisions about them;
• representing the child in legal proceedings;
• making other slightly less usual decisions about a child such as whether a sixteen year old should be allowed to get married, making arrangements for a child’s funeral, deciding whether a child should be adopted.

It also carries with it the automatic entitlement to make certain applications to the court (for example for contact or residence) to be a respondent to care proceedings. However, even without PR, an unmarried father is entitled to reasonable contact to a child in care and is able to make an application to the court for permission to apply for orders or to join in care proceedings.

Tuesday, 21 August 2007

The sentence of marriage

I was married by a judge. I should have asked for a jury.

Groucho Marx

Sunday, 19 August 2007

Can More Than One Person Have Parental Responsibility in UK Family Law?

Yes: for example -

Parents who are married both have parental responsibility.

A local authority is given parental responsibility when a care order is made but the mother (and maybe the father) will continue to have parental responsibility along with the local authority. The local authority will be in the driving seat, however, and can override the wishes of the parents if they cannot reach an agreement. The same applies once a placement order is made: the local authority can determine the extent to which a parent or guardian or prospective adopters may exercise parental responsibility. At this point, the local authority, parents / guardians and the prospective adopters all share parental responsibility.

A grandmother may have an order saying a child should live with her so she gets parental responsibility. The mother (and maybe the father) will still have parental responsibility.

A Special Guardian will share parental responsibility with the parents but can generally exercise it to the exclusion of anyone else. An exception applies in circumstances where the law provides that the consent of more than one person with PR is required (for example, the sterilisation of a child). The Special Guardian may not give consent to adoption or placement for adoption and may not change the child’s surname or take them out of the UK for longer than 3 months without the consent of everyone with PR or permission from the court.

Where more than one person has PR each of them may act alone in meeting that responsibility unless the law specifically requires joint agreement such as over a change of surname.

Friday, 17 August 2007

Who Has Parental Responsibility?

This is the first in a series of posts about parental responsibility.

Who Has Parental Responsibility in UK family law?

The mother of a child always has parental responsibility. This can only be removed if a child is adopted or placed for adoption under a a placement order.

The married father of a child has parental responsibility (whether he was married to the mother of the child before or after it was born).

If the child’s birth was registered before 1st December 2003: the unmarried father of a child will have parental responsibility if he and the mother have signed a parental responsibility agreement (and completed the necessary formalities – see later in this document for more information) or the court has made an order saying that he should have parental responsibility.
If the child’s birth was registered after 1st December 2003: the unmarried father will have parental responsibility if he is named as the father on the birth certificate. This can include situations where the birth is re-registered to include the father’s details if they were not there before but ironically not to include unmarried father’s who were already on the birth certificate before 1.12.03. The unmarried father cannot have his name put on the birth certificate without his consent.

A step-parent, provided that all those with parental responsibility agree in writing (similar to the parental responsibility agreement for unmarried fathers).

A civil partner can acquire parental responsibility with the agreement of the other partner if they have PR. If the child’s other parent has PR they must agree as well. Civil partners can also acquire PR if they have a residence order or on adoption.

Anyone who has a residence order (an order saying that the child should live with them) as long as the order is in force.

The local authority if a care order has been made.

The adoption agency when a placement order is made and prospective adopters when a child is placed with them following a placement order being made.

Someone who has been appointed as the child’s legal guardian (not the same as a guardian appointed to represent the child in court).

The holder of a Special Guardianship order.

Tuesday, 14 August 2007

The inevitability of a court case

A reasonable man can get out of most any trouble, except marriage, without going to law.

Charles Darling, Scintillaw Juris, 1877

Monday, 13 August 2007

Another menu of family law reforms

Quite by coincidence on the John Hemmings weblog there is a draft list of changes he would like to see to public law proceedings which appeared there on Sunday morning.

Thursday, 9 August 2007

Family law reforms continued

So what are the ideas which the system's critics are coming up with? I am going to start to collect them up here and then comment on them in detail in separate posts. I would love to hear of any others but here are a few I have found:
* Media access to all family courts;
* The support and enforcement roles of social services should be separate;
* The Children's Index should be scrapped;
* Expert evidence on which any diagnosis of Munchausen By Proxy Syndrome should be rejected & the RCP Guidance on this should be revised;
* The courts should ensure the reliability of expert evidence as well as its relevance - the general acceptance test should not prevail;
* Parents should be able to obtain orders more readily to talk to the press about their cases;
* Additional resources should be provided or existing resources diverted towards family support;
* Proper notice of case conferences should be given to parents with the option of legal representation at them and advance copies of documents to be presented;
* Police service should be the lead agency in child protection;
* Better support for litigants in person;
* The role of treating and reporting experts should be kept separate;
* Jury trials in contested placement order cases;
* The meaning of child abuse should be clearly defined;
* An end to targets for numbers of children placed for adoption;
* The establishment of a mechanism for pre-birth judicial inquiry;
* A Royal Commission into the Child Protection system;
* Scrutiny of lawyers to ensure they represent their clients competently and fully in care cases.
And I would add one myself:
* Full disclosure from local authorities in care proceedings as a matter of right

Family law reforms

Perhaps unsurprisingly, given that the story about John Hemmings' private life is actually rather old news (see Fassit reprint of story in the Mail on the Fassit website ), there seems to have been no comment from the 'millionaire MP'. Not that the Guardian piece was claiming that it was a new story. The fact that his interest has been sparked off by some personal experience doesn't seem to me to be all that different a position from, or make his interest in the subject questionable than, that of Angela Cannings or the many other families who have been through what they see as an injustice at the hands of the family justice system. Certainly the expression of his views can be intemperate and sweeping and that may be borne of an anger which has a personal stem and may, of course, affect his ability to be objective. I could wish the debate about family law reform was more thoughtful, less geared towards tabloid headlines and took account of the vast numbers of cases where social services quite rightly intervene, but I am still glad of the public attention on the subject which comes from a number of sources, many of whom are also angry, having lost family members and family relationships because of faults in the system. Lawyers now meet with less resistance when wanting to challenge the opinions of experts or obtain second opinions. Social workers are expected to keep records which they know may be scrutinised in proceedings and lawyers now regularly ask for and receive those documents (this was not happening even 5 /6 years ago). The local authority is under a duty to disclose documents which go against their case. More and more judgments are published and widely available and this will soon be the norm. Parents do get far more by way of independent assessment and this has increased dramatically, particularly in the last 5 /6 years. The attitude of all participants in the system to the role of fathers has changed radically. Of course, there is still much more that can be done (as there always will be, if only because society usually changes faster than the system). With over 60,000 children in care, the system cannot deal with every case being treated as a public inquiry. But Mr Hemmings and other critics of the system are raising some very good points and it would be a pity to throw the baby out with the bath water. Anyone who did that would no doubt attract the attention of social services....

Wednesday, 8 August 2007

An insight into John Hemmings?

A journalist called Jonathan Gornall has written an interesting commentary on John Hemmings campaign against social services and the possible personal motivations behind the Liberal Democrat MP's interest, inspired by the contribution of his wife to a Community Care article on the adoption target debate . He might think that, I couldn't possibly comment! I await the response on John Hemming's blog with interest.

Saturday, 4 August 2007

Love & friendship

Marriage was contrived for ordinary people, for people who are capable of neither great love nor great friendship, which is to say, for most people—but also for those exceptionally rare ones who are capable of love as well as of friendship.


Friday, 3 August 2007

Do parents matter and do they know best?

Recent research by a team of psychologists led by Dr Kristin Heffernan has found that mother certainly doesn't think she knows best. A brief summary is published on the British Psychological Society's website . Present day mothers apparently trust "expert" medical advice more than their own instincts. They might be comforted to read what Levitt & Dubner say in Freakonomics about what makes the perfect parent (see the Freakonomics blog ). They examine a range of data and research which seems to suggest that it doesn't much matter what parents do unless what they do is very bad. In other words averagely good parents don't seem to accomplish much for their children so we might as well stop worrying about what the experts think. They do look at what factors have strong correlation to school test scores ie are found to be true at the same time as high or low test scores. High test scores are correlated with: the child having highly educated parents, the child's parents having a high socio-economic status, the child's mother being over 30 when the child was born, the child having English speaking parents, the child's parents being involved in the PTA and the child having many books in the home. Low test scores are correlated with the child having a low birthweight and the child being adopted. Factors which seem to make no difference at all are: the child's family being separated, the child's parents moving to a better area, the child's mother being at home in the early years, the child being taken to museums, the child being spanked, the child watching a lot of television and the child's parents reading to him nearly every day. So you can stop feeling guilty that you plonk your child in front of the teletubbies for a bit of peace and quiet and that you never actually get around to taking them to the V & A because you would rather watch the Simpsons.