Saturday, 29 September 2007

Complaints about Cafcass

In UK family law cases about children, CAFCASS (the Children & Family Courts Advisory & Support Service) often appoints its officers to provide reports to the court - for more information see their website . These reports are highly influential to the courts so it is important that Cafcass Officers work to a high standard and do their job properly.

John Hemmings has put a post on his weblog about the Cafcass complaints system in which he says he finds it unusual that there are a number of complaints which Cafcass does not even register (354 out of 640 last year). It does not seem to me that there is anything sinister about this when you know what the explanation is. If complaints relate to disputed evidential issues before the courts they are referred back to the courts and are not registered as complaints. In other words it does not count as a complaint if you are saying 'I want to complain about the Cafcass Officer because I do not agree with their recommendation' or 'the Cafcass Officer says I said bla bla bla but I did not'. This is made clear in the Cafcass complaints booklet . Readers may be interested to know that there were only 194 registered complaints in 2006-7 and 210 compliments!

Thursday, 27 September 2007

Kidsneedmums - blog of mum with bipolar

I have come across an interesting blog written by a mother with bipolar disorder about her experience in the family courts and her perception that there is discrimination against parents with mental illness. I will comment on some of the issues she raises in her posts in separate posts and would be interested to hear from other parents with mental illness and how they think they have been treated and what level of knowledge and understanding they feel courts and UK family law practitioners have about their illness.

More advice to mothers about parental responsibility

The real point to consider is – will it really make a difference on a day-to-day basis? Will it cause difficulties that you either have to put up with anyway or ought to?

Non-resident parents have a lot of separate rights, for example, under the Human Rights Act, by their ability to make an application to the court for orders about the child’s upbringing, by their right to have certain information from schools and doctors etc.

It is a fairly rare situation where a court would say that shared parental responsibility cannot be made to work.

A resident parent should also take account of certain realities. If parents cannot agree about something, will they really take the dispute to the court?

This will be affected by a number of points, including, for example, MONEY. Can the non-resident carer afford to be constantly referring disagreements to the court? How easily can they take time off work to go to court? How likely is it that the non-resident parent would be successful if they did apply to the court? Does the non-resident parent really want to have an argument in court (as opposed to over the telephone) about a relatively small point? Is there some other way of avoiding arguments about small issues or reassuring both parents? For example, is there a helpful third party such as a grandparent or family friend who can help negotiate smaller points?

Another reality check: even if a parent does not have parental responsibility, this does not stop them making an application to the court to have contact, or to challenge the decision of the parent with primary care.

Ask yourself whether in all those circumstances it really makes any difference to you whether a non-resident father has parental responsibility?

Think very hard about your reasons for objecting. How would they sound as tabloid headlines? What would your mother or best friend say? How much is your view influenced by the nature of the adult relationship and break up? Are you simply using the PR issue as a bargaining chip? Can you really put forward a child-centred reason for refusing PR? There aren't very many.

International Relocation: a father's experience of the family justice system in the UK

The Telegraph Magazine has published an article by Philip Watson about a father's experience of how the UK family courts dealt with his ex-wife's application to take his son to Australia which makes for harrowing reading. Obviously there will be another side to the story if looked at from the mother's perspective (for example, she had no family of her own in the UK, had remarried an Australian and had another child with him) but it is a moving illustration of the pain that is involved in these very difficult cases and the high cost of family breakdown. For an overview of the UK law on this topic see this article by a UK family barrister on Family Law Week and this batch of relevant case summaries .

Wednesday, 26 September 2007

My child's father has asked for parental responsibility. Should I agree?

Mothers are often very anxious about what it means for a father to have parental responsibility. Just to give a few examples:

• Will the father interfere with her day-to-day life looking after the child by stopping me from dressing the child the way I want or feeding the child in a particular way?
• Will the father be able to stop me from doing something for the child that I want to do, such as bringing the child up as a Catholic or Muslim, or sending him to a private school or particular local school?
• Will the father be able to get access to school reports or the child’s medical records?
• Will the father be able to introduce the child to his new partner?

In considering the father’s application a mother should think through the following points:

• the norm is for a father to be given parental responsibility unless he has behaved extremely badly towards mother or the child, has no relationship with the child, is really only making the application as a way of maintaining contact with the mother, is mentally ill in such a way that he could not exercise parental responsibility;

• a father is rarely refused parental responsibility simply because he has paid no maintenance (unless it is part of a wider picture showing lack of commitment);

• a court will always look to see if it can make other orders which help overcome the mother’s anxieties, for example, by making orders under section 8 (eg residence, contact, specific issue or prohibited steps orders) or by attaching conditions to orders);

• for example, if a father accepts that the child should live with the mother because she is a good mother, it can be helpful if the court makes an order stating this, and recording that father consents. This can help the mother to realise that father is not ‘trying to take the child away from her’ or criticising her in some way.

• ‘Responsibility’ is not seen by the courts in exactly the same way as its everyday meaning – the fact that a father is rather immature or not terribly reliable, or has had an affair will not be seen by the court as irresponsible in the usual way people use the word. A parental responsibility order tends to be seen by the court as a way of recognising a father’s status in the child’s life rather than a statement that he is a ‘responsible’ father;

• one of the reasons that fathers are given parental responsibility, even if they have not always co-operated well with the mother is that at the end of the day the court knows that disputes about particular aspects of parental responsibility are usually decided in favour of the person with primary care;

• a father without parental responsibility has (at the moment) no automatic right to be involved in any court proceedings with regard to the child being taken into care or being adopted – one of the reasons why UK family courts think it important for a father to have parental responsibility.

Tuesday, 25 September 2007

Law In Action on the BBC

As from Tuesday 25th September the popular Radio 4 series “Law in Action” will be available as a podcast or via iTunes

The series returns with features on compulsion of witnesses, the use of DNA evidence and a powerful interview with the Chief Inspector of Prisons, Anne Owers.

Sunday, 23 September 2007

Legal Blogs

Today I have been having rather more fun than you might think possible looking at some other legal blogs and adding them to my blogroll. Ruthies Law is a great blog from a criminal lawyer and a rather more amusing take on the Bruce Hyman story than mine. I am also grateful to Nearly Legal for pointing me in the direction of a take on the Bruce Hyman story -
a Daily Mail interview with Bruce's client . There are a lot of blogs by pupils (people training to be barristers) or would-be pupils which make for quite amusing reading if you like that sort of thing (and sadly I do) - Law Minx , Bar or Bust , and Pupil Blog (please tell us whether you got the tenancy!) to name but a few.

Saturday, 22 September 2007

The duty of Counsel

I am reeling with shock at the conduct of Bruce Hyman who has been sent to prison for twelve months as the Telegraph reports for planting a fake judgment on his opponent father in a contact case. A vox pop of my colleagues suggests that he got off quite likely as most of us would have given him two years. All of us are capable of making mistakes (yes even me) but what he did goes so far against the ethical requirements of a barrister and involved a calculation and stealth which it is impossible to attribute to a moment of madness or forgiveable misjudgement as a couple of quotes from the case of Rondel v Worsley in 1964 illustrates. Lord Reid said:\

"Every counsel has a duty to his client fearlessly to raise every issue, advance every argument and ask every question, however distasteful, which he thinks will help his client's case. But, as an officer of the Court concerned in the administration of justice, he has an overriding duty to the Court, to the standards of his profession and to the public, which may and often does lead to a conflict with his client's wishes or with what the client thinks are his personal interests."

And from Lord Denning:

"Counsel must accept the brief and do all he honourably can on behalf of his client. I say 'all he honourably can' because his duty is not only to his client. He has a duty to the Court which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say what he wants or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice. He must not consciously mis-state the facts. He must not knowingly conceal the truth. He must not unjustly make a charge of fraud, htat is, without evidence to support it. He must produce all relevant authorities, even those that are against him. He must see that his client discloses, if ordered, the relevant documents, even those that are fatal to his case. He must disregard the most specific instructions of his client, if they conflict with his duty to the court. The code which requires a barrister to do all this is not a code of law. It is a code of honour. If he breaks it, he is offending against the rules of the profession and is subject to its discipline. But he cannot be sued in a Court of law. Such being his duty to the Court, the barrister must be able to do it fearlessly. He has time and time again to choose between his duty to his client and his duty to the court."

Munchausen's By Proxy Syndrome

In my internet travels looking at the situation faced by Fran Lyons who has been diagnosed as having or likely to develop Munchausen's By Proxy Syndrome, I have been reminded about a great resource for parents dealing with this issue - the MAMA website - Mothers Against Munchausen Allegations. The site has a lively discussion forum as lots of information about where to find medical & Psychiatric articles and other resources. There is often information of interest to families facing allegations of other sorts of harm such as shaken baby etc (particularly in the Offtopic forum) but the main focus is MBPS allegations.

Monday, 17 September 2007

Askthefamilylawyer UK website on UK Family Law

Just to let you know that the askthefamilylawyer website has undergone a major overhaul. Articles are being added to the website on a daily basis - the old articles are being revised & updated and the website will carry a number of sections with explanations about who the main people and orders in family courts, what to expect at court hearings and so on. It will also contain the complete text of any articles which appear on this blog in a series format such as the current series on Parental Responsibility. Keep checking in!!

What is the Hague & European Convention & which countries have signed it?

The theory behind the Hague Convention is that matters concerning the custody of a child should be decided in the place of the child's habitual residence (where the child usually lives). The Convention requires that the judicial or administrative authorities in any Convention State to which a child has been removed act without delay to determine whether the child has been wrongly removed from his or her place of habitual residence and, if so, to secure the return thereto. Removal is wrongful if it breaches the applicant parent's custody rights under the laws of the state requesting return.

Under the Hague Convention a case for return must fulfil a number of requirements. The principal ones are:

* The child must be under 16 years of age;

* The child must have been habitually resident in a Convention Country before the removal or retention;

* The removal or retention of the child must have been wrongful - i.e. in breach of someone's rights of custody which were being exercised, or in breach of a court order;

* The abduction must have taken place after the relevant Convention came into force between the UK and the country to which the child has been taken;

*The child must now be in a Hague Convention country.

The purpose of the European Convention is to enforce orders relating to custody where a child has been kept or taken overseas in breach of those orders, and to enforce orders relating to access. The scope of this Convention is much narrower than the Hague Convention.

Under the European Convention a case for return must fulfill a number of requirements. The principal ones are:

* The child must be under 16 years of age;

* There must be an order for custody or access;

* The European Convention must be in force between the UK and the country to which the child has been taken;

* The child must now be in a European Convention country.

Here is a list of countries which have signed the Hague & European Conventions .

A good website with information about Child Abduction situations is Reunite a UK charity specialising in international child abduction. The site also has a list of lawyers in the UK & abroad who deal with these cases.

Tuesday, 11 September 2007

Boston Legal's Alan Shore

Denny Crane's handsome sidekick Alan Shore, played by James Spader.

"Let me tell me two things about myself. I too am a lawyer, I can be painfully vindictive, and I do not play fair". My role model.

Monday, 10 September 2007

Removal of Babies from their parents

My article is now published on the removal of babies from their parents in Family Law Week . I have been wondering to myself where the local authority considering the McCann children stand (see this article : they will only have an argument to remove the twins if there is evidence on which a court could say that there are reasonable grounds for believing that Madeleine suffered significant harm attributable to the care given to her by her parents not being what it would be reasonable to expect a parent to give her and that there is a risk of similar harm to the twins. In the McCann's case there might possibly be an argument arising from the fact that they left the children alone while they were eating a meal, although I doubt that would be anywhere near sufficient to justify removal if the reports of their proximity to the children and the frequent checks they made are true. If, however, there is some evidence implicating them in her disappearance, that might be a different story. I have read some reports suggesting that biological fluids were found in the car hired some weeks after her disappearance which are an 80% match to Madeleine's DNA. Even if there is any truth to this, it begs a lot of questions including whether the fluid may in fact come from the twins and a Telegraph article discusses other concerns about the quality of forensic findings. The problem will come if the case ends up in a UK family court before the evidence can be fully examined (goodness only knows how this fits with the Portuguese rules about the suspect not being able to speak in public about the case). The court then has to decide whether the evidence of harm, even if not conclusive, justifies removal given that the risk of harm to the other children would be of harm of an extremely serious & life threatening nature. The horror of them losing two more children while full enquiries are made, particularly if months later it becomes clear that they are not responsible does not bear thinking about, but equally neither does the idea of taking an unnecessary risk with the children. Even if the local authority decided to ask the court to sanction removal, however, it should not forget to look at the option of other family members caring for the children. I start from a position of legal scepticism about the likelihood of the McCanns being responsible for Madeleine's disappearance or death but I have to confess that there is something about them that makes me very much want it to turn out that they are not implicated in any way - not that the prospect of a random villain is of much more comfort.

Thursday, 6 September 2007

Removal of babies from parents: the law

I have been reading with growing alarm about the case of Fran Lyons on her website Asking for a Chance and in the press (see this Daily Mail article . I have to say I rarely like to get drawn into this sort of debate as usually you can only hear one half of the story. But the half that I have heard causes me great concern. Fran has clearly had some problems earlier in her life and now she is expecting a baby. The local authority are saying that they will remove the baby at birth. Fran is understandably terrified about what will happen. I don't know all the background details of the case but if half of what is written about the case is true, the local authority would be well advised to take a look at an article I have written for Family Law Week which will be published next week. In one of the cases referred to the Mr Justice McFarlane specifically says that cases involving fabricated or induced illness with no medical evidence of immediate risk of direct harm to the child will rarely warrant an emergency protection order. In addition there is case law which suggests that Munchausens Syndrome By Proxy (MBSP) or factititious illness (a syndrome in which parents are thought to fabricate or induce illness in children) does not even exist. Mr Justice Ryder said this: "The terms ‘Munchausen’s Syndrome by Proxy’ and ‘Factitious (and Induced) Illness (by Proxy)’ are child protection labels that are merely descriptions of a range of behaviours, not a paediatric, psychiatric or psychological disease that is identifiable. The terms do not relate to an organised or universally recognised body of knowledge or experience that has identified a medical disease (ie an illness or condition) and there are no internationally accepted medical criteria for the use of either label. In reality, the use of the label is intended to connote that in the individual case there are materials susceptible of analysis by paediatricians and of findings of fact by a court concerning fabrication, exaggeration, minimisation or omission in the reporting of symptoms and evidence of harm by act, omission or suggestion (induction). Where such facts exist the context and assessments can provide an insight into the degree of risk that a child may face and the court is likely to be assisted as to that aspect by psychiatric and/or psychological expert evidence." Fran says that she has been diagnosed as likely to suffer from this syndrome by a Paediatrician who has not in fact ever met her. Further she says that the Psychiatrist(s) that know her do not agree. It is difficult to see how that diagnosis could possibly be made on a paper assessment before the baby has even been born and suffered any harm at all. Writing about diagnosing MBSP, Professor Tim David, a leading Paediatrician said: "This is one area where confusion can occur. The diagnosis is made in the same way as in any other case of physical abuse, and not by identifying certain parental characteristics, such as the mother being a nurse." And even if it were true that Fran does have the condition of MBSP this does not mean she could not be given support and Psychiatric treatment.

Wednesday, 5 September 2007

Yes but what does sharing parental responsibility really mean in practice?

This question is best answered by giving a few example of situations in which parents trying to share parental responsibility do not agree about the way a child should be brought up.

In most cases, the court can be asked to make a decision when parents cannot agree.

In most cases, the court will give very serious consideration to the wishes of the parent who is the main or primary carer.

Ordinary everyday decisions about what a child should eat or who a child should spend time with will generally be assumed to be down to the parent with whom the child is with at the relevant time. The court will only interfere if the decision of that person is going to cause the child some harm.

For example, a mother may try to make sure that a child has a varied diet and eats vegetables. Father, who maybe does not see the child very often, maybe is not a good cook or does not have good cooking facilities etc wants to take the child to Macdonalds. A court is unlikely to interfere unless there is a serious problem such as a food allergy.

The non-resident parent may want the child to spend time with his grandfather. The mother may not like the grandfather. The court is only likely to interfere if the child is at some sort of risk.

The court can also consider making other orders to ensure the smooth running of the child’s relationship with his parents. For example, it could say there should be a contact order to father, with a condition that father does not bring the child into contact with the grandfather either at all or unless the father is present, depending on the circumstances and the harm that the child might suffer if the contact order is made. Conditions to orders can be very specific. They could include:

• the child is not to be brought into contact with person X;
• the child is only allowed to be in contact with person X if another responsible adult is present;
• the child is not allowed to be taken to place Y;
• the child is not to be given certain foods;
• the parent having contact must inform the mother if a certain event happens such as a medical emergency;
• the parent having contact must supply the other parent with a telephone number;
• the parent having contact must tell the other parent where the child will be sleeping during overnight contact;
• the parent with whom the child lives must tell the other parent about significant school events such as parents’ evenings;
• the parent with whom the child lives must keep the other parent informed about medical appointments etc.

This list is endless.

The court can also make other orders under section 8 of the Children Act (residence orders, contact orders, prohibited steps orders and specific issue orders. For example, an order could be made saying that the child should go to a particular school or should not be taken out of the country.

The court is unlikely to intervene in relation to relatively minor issues about which parents commonly fall out. However, the smooth running of family relationships after adults have separated is not going to be assisted if you act provocatively. It may be tempting to allow the child to have a skinhead haircut or have their ears pierced but unless you have cleared this with the other parent you run the risk of an argument at the very least or a refusal to allow contact.

It is advisable to consult or inform the other parent before you introduce a child to your new partner, allow the child to see a controversial or slightly adult content film, make any major purchases (such as a computer) or start the child on a special diet or course of medication. These may seem minor things but they have consequences for both parents. For example, if a mother knows that a child is about to meet a new partner, she can help prepare the child for the meeting and hopefully reassure the child that this is okay with her. If you do not consult about major purchases both parents may end up buying the same thing. You also need to consider where the child is going to keep something like a computer. It may be tempting to have it at your home but maybe the child would like to have it at their main residence. The solution could be to buy a laptop.

Tuesday, 4 September 2007

10 Ways to Irritate the Other Parent & Provoke a Court Case

  • Never turn up at the arranged time for contact
  • Never bring your child back on time from contact
  • Refuse to agree a regular contact regime because you just want contact whenever you want contact
  • Give your child a drastic haircut or dye the child's hair a funny colour without telling them
  • Get the child's ears pierced without their agreement
  • Drive the child about in a care without a car seat, tax or insurance
  • Feed the child peanuts / milk / chocolate because you refuse to pander to the other parent's ridiculous ideas about food allergies
  • Tell the child about your plans to take them on a foreign holiday before you have cleared it with your ex
  • Introduce your child to the fabulously gorgeous, wealthy & famous new girlfriend or boyfriend you met last week
  • Buy your child a Barbie doll with complete wardrobe or tickets to see Arsenal at home but never a pair of wellington boots or school uniform

What does sharing parental responsibility mean in practice?

In UK family law, generally speaking an individual person with parental responsibility can make decisions about the child on their own, if need be.

In fact, there are also many decisions which may be made by someone who is simply looking after a child. The Children Act 1989 says that any person who has care of the child (which may be a child minder, relative, teacher etc) may do what is reasonable in all the circumstances for the purpose of safeguarding or promoting the child’s welfare. This is subject to the need to comply with any court orders or other legal restrictions but it means that a responsible adult can make emergency decisions on behalf of a child even if the parent or parents cannot be consulted. Despite this, in practice, a carer may find it difficult to act alone – hospitals, for example, will be careful to ensure that parents are involved before any major treatment decision is made.

There are a few things which can only be done with the agreement of every individual with parental responsibility. You may not change a child’s name, consent to a child’s marriage or consent to a child being adopted without specific agreement between everyone with parental responsibility. You may not take the child out of the country to live (although if you have a residence order, you are allowed to take the child away for a holiday for up to 4 weeks without the specific agreement of anyone else with parental responsibility.

A non-parent with parental responsibility (eg a grandmother or stepfather with a residence order or Special Guardian) may not consent to adoption or appoint a guardian for the child in the event of his death.

If a court order has been made, everybody with parental responsibility must do whatever the court orders. This takes priority over anything else – in other words if the court says the child should go to such and such a school, it is not up to the mother to change that unless she goes back to ask the court to make a different order.

If the local authority has parental responsibility because of a care order it has the power to determine the extent to which a parent or legal guardian may meet his parental responsibility for the child. In other words, the local authority’s decision is final. If there is disagreement over contact, however, the parent can make an application to the court. If there is disagreement over other issues, there may be other legal remedies but this would require specialist legal advice.

If parental responsibility is shared it is a good idea to consult or at the very least inform the other party if you are about to take a major step in a child’s life such as decide which school the child should go to. Strictly speaking, you can act alone but if the other party objects you may find yourself on the receiving end of an application to the court. The more information you share the less likely there is to be an unnecessary disagreement.

Sunday, 2 September 2007

CSI: follow the evidence

And another hero: Gill Grissom
"There's three things I got a real problem with: Guys that hit their wives,
sexual assault on children and the scum that deal death to kids."

The CSI website has its own wiki.