Legal Aid Lawyer of the Year Awards – 2017

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A very big congratulations to our very own Sheila Donn winning ‘Public Family Lawyer of the Year – 2017.’

Sheila has had an exceptional year, with a string of landmark cases, including Re W which led to the Court giving guidance on the separate representation of children and Re N which led to much needed clarification of Re Valentine Settlement in relation to international adoptions. The Philcox Gray team were out in force to celebrate Sheila’s achievement and a great night was had by all.

New Draft Legislation Promises To Transform The Approach To Domestic Violence

The bringing forward of legislation “to protect the victims of domestic violence and abuse” was promised by the Government in this year’s Queen’s Speech, delivered on 21st June 2017.

The Government’s briefing notes on this commitment state the purpose of the Bill is to “transform our approach to domestic violence and abuse to ensure that victims have the confidence to come forward and report their experiences, safe in the knowledge that the state and justice system will do everything it can to both support them and their children, and pursue their abuser.”

The main benefits of the Bill are said to be:
• To protect victims of domestic violence and abuse.
• To give the justice system greater guidance and clarity about the devastating impact of domestic violence and abuse o on families.

The main elements to be introduced by the Bill include the establishment of a Domestic Violence and Abuse Commissioner, the creation a consolidated new domestic abuse civil prevention and protection order regime and, if the abusive behaviour involves a child, the Court can hand down a sentence that reflects the life-long impact that abuse can have on the child.
The Bill’s substantive provisions would apply to England and Wales only.

A break down of all the Bills announced in the Queen’s Speech can be found at http://www.bbc.co.uk/news/uk-politics-40339564 and a copy of the full speech at www.gov.uk/government/speeches/queens-speech-2017

Judges and Serious Case Reviews

Sir James Munby, the President of the Family Division, has released new guidance on the cooperation of judges in Serious Case Reviews. Sir Munby acknowledged there is some misunderstanding as to the extent to which a judge can participate in a review and his guidance reminds us their involvement has potential to bring up issues for judicial independence and the separation of powers.

Serious Case Reviews are conducted by a local authority’s Local Safeguarding Children Board. These Boards are statutory bodies established by the Children Act 1989, and are chaired by a senior social work manager from another local authority. A Board is brought together to complete a detailed review of a local authority’s involvement when a child with whom they have been involved dies. Judges are sometimes asked by the Board for their involvement in these reviews, but they never respond and do not undergo any interviews. They are under no obligation to assist. As President Munby’s guidance explains, this is not because the Judiciary wish to avoid scrutiny or accountability but because judges must be free from the direction and management of other judges. The responsibility of a judge’s decision falls to the judge alone and if their decision is to be reviewed it is to be done within the court arena only by way of the appeal process. This principle, President Munby points out, was developed in order to protect the rule of law, to ensure that the only way to challenge a judge’s decision is in a court of law. All requests from a Board he says should be passed to his office where they can be responded to accordingly.

To see President’s Munby full guidance for judges asked to participate in these reviews follow this link President Munby’s Guidance

Client successfully challenges Local Authority’s assessment

IW was a single mother with three young children. We previously represented her in an action for judicial review of the local authority’s (LA) failure to provide support under the Children Act 1989. By Consent Order dated 16 April 2013 the LA agreed to provide IW and her children with suitable accommodation and adequate financial support pursuant to section 17 of the Children Act 1989 pending the final determination of IW’s application for Leave to Remain under Article 8 of the European Convention of Human Rights.

IW returned to instruct us when she was notified that the LA were going to move her family to Nottingham. The family had lived in London for 10 years and had a support network upon which they were very dependent. The children were also in the middle of their academic year. We requested that the LA carry out an assessment in respect of the proposal to move the family.

The LA‘s assessment concluded that the family would be moved to Nottingham. On considering their assessment we identified that it was challengeable on the following grounds: the LA had unlawfully fettered its discretion, they misapplied their policy, they failed to conduct a lawful proportionality assessment, and failed to follow statutory guidance and consider the children’s wishes and feelings. We requested therefore that the LA carry out a further lawful assessment. However the LA refused to do so.

An application was issued to the Administrative Court for permission to apply for judicial review of the assessment taken by the LA and the decision contained therein that IW and her family would be moved to Nottingham.

In response to this the LA agreed to withdraw their assessment and decision, and carry out a lawful assessment. This second assessment concluded the family should not be moved to Nottingham.

This case demonstrates Philcox Gray’s continued commitment to clients. This case demanded a command of family, housing and public law – three areas of law which are intertwined and the areas in which we specialise. Our practice areas enable us to provide a full and thorough service for our clients.

This case was conducted by Poppy Bourke and supervised by Rebecca Bahar. Tessa Buchanan of Garden Court Chambers was instructed to prepare the grounds for judicial review.

London Legal Walk 2017

Once again March finds the Philcox Gray team gearing up to take part in the annual London Legal Walk.

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The walk, this year on 22nd May 2017, sees the team along with over 300 other legal providers from in and around London, walk 10k across the city to raise money for free legal advice charities. These charities are invaluable to those most in need such as people who suffer disability or illness and their carers, women and children trafficked to the UK and those who are unfairly dismissed or discriminated against at work. With our help these charities can continue to provide life changing advice and representation to those who have been unable to access legal help.

Last year’s walk saw over 10,000 people take part, the Philcox Gray team included, but 2017 is set to be even bigger. Find out more about this year’s walk and #WhyWeWalk at

http://www.londonlegalsupporttrust.org.uk/our-events/london-legal-walk-2017/whywewalk/

Client’s foreign adoption recognised by English family court

N (A Child), Re [2016] EWHC 3085 (Fam)

Sheila Donn, joint head of our family department, was recently instructed by Child N in an application before the President of the Family Division. The application asked the court to recognise Child N’s Indian adoption and for an English adoption order to be made under the Adoption and Children Act 2002.

In his judgment the President gave guidance for future cases on the correct legal principles which are to be applied when recognising religious adoptions. He hoped this guidance would help avoid the confusion surrounding previous decisions in similar cases.

The President scrutinised the case-law regarding recognition of foreign adoptions and pointed out that the principles derived from the original case of Re Valentine’s settlement have been reinterpreted in recent judgments “in a manner which has not always commanded universal judicial assent”. He confirmed the criteria set out in Re Valentine’s is and remains the only criteria to be applied.

The President found Child N’s Indian adoption complied with Re Valentine’s and should therefore be recognised in English law.

The full judgment can be read here: http://www.bailii.org/ew/cases/EWHC/Fam/2016/3085.html

If you need any advice with a family matter, please contact us to see if we can assist you.

reasonableness, suitability, under-occupation, mental health and possession

Governors of the Peabody Trust v Lawrence

Philcox Gray’s Partner and Head of Housing Ruth Camp, acted for the defendant in her successful defence of a possession order sought by a local housing association.

Our client had lived in a property with her mother, who was the secure tenant, since she was four. Her mother had a long history of depression and mental health problems. Our client became the main carer for her mother from the age of 10. Sadly her mother took her own life.

Our client succeeded to the tenancy and but was also suffering from her own mental health problems. Following her mother’s death, she needed regular care and support through the day and night. She did not have a full-time carer, but relied on the help and support of a large network of family, friends and neighbours. The housing association asserted that the property, which had three bedrooms, was too large for her needs. It claimed possession under Housing Act (HA) 1985 Sch 2 Pt III ground 16. We supported our client in arguing that it was not reasonable to grant possession and, in any event, suitable alternative accommodation would need two bedrooms as she required space for her overnight carers to sleep and outside space for her dog, which was a source of support to her.

At the 2 day trial, the Central London County Court Judge found that a one-bedroom property was not suitable alternative accommodation as the defendant reasonably required two bedrooms. Our client also needed a ground floor property with a secure area for her dog to be exercised. The Judge found that while there was a very substantial demand for family-sized housing in the London, in all the circumstances, the risk of harm to our client if moved, outweighed the social benefit of freeing up a three bedroom house. It was therefore not reasonable to make a possession order. The Judge ordered that the claimants pay the defendant’s costs.

After the hearing Ruth Camp commented: “this was a great result for our client; it gives her the opportunity to now finally grieve for her mother and move on with her life, and to seek to address her own health problems for the future”

If you need any advice or assistance with a housing matter, please get in touch.

FATHER WINS DECLARATION OF PARENTAGE APPLICATION IN SPERM DONOR CASE

Beverley King, Partner and joint Head of the Family Department at Philcox Gray, recently represented the father of a two year old child on a successful application for a Declaration of Parentage and Child Arrangements Order in respect of contact.

The father had been in a relationship with the mother for some years prior to the birth of the child. The couple had been unable to conceive naturally and received IVF treatment, which concluded with the mother conceiving by sperm donation. As far as the father was concerned the clear intention at the time of the treatment was that he would be the legal parent of the child. All of the necessary forms were signed by both parents at the Fertility Clinic. The couple separated soon after the birth of the child and the father’s contact completely broke down when the child was approximately one year of age.

The father made applications to the court for a Declaration of Parentage and a Child Arrangements Order for regular contact. During the course of the proceedings the mother denied that the forms conferring legal parentage on the father had actually been signed by both of them at the Clinic. The mother effectively wanted to “wipe” the father out of the child’s life and was seeking a declaration that he was not the father of the child. The Clinic were very unhelpful during the proceedings and failed to produce important documents which supported the father’s case despite a number of Court Orders to do so . It actually took the Clinic over 6 months  to disclose critically important documents. It was astonishing that the Clinic did not appear to take the court proceedings seriously until a Court Order with a penal notice attached ordered the Medical  Director’s attendance at a court hearing if there was any further failure to produce information and documents.

The relevant forms were in fact never produced but other evidence was produced by the Clinic shortly before a contested hearing and this evidence proved that the forms had been signed. Without a doubt the Clinic’s limited disclosure of documents until the eleventh hour served to prolong the proceedings unnecessarily and increase anxiety for both the mother and father. Once the relevant documents were received from the Clinic, the mother withdrew her opposition to the father having a Declaration of Parentage in his favour. The Court formalised the parties agreement and made a Declaration of Parentage in favour of the father and also made a Child Arrangements Order in respect of contact. The father re-established contact with the child shortly after his second birthday. Contact is going well and the proceedings are continuing in respect of contact arrangements.

This was a very interesting case in a fairly new area of law. There have been recent high profile cases which exposed the administrative incompetence of some Fertility Clinics. The case of Z Fertility Clinic in 2013, brought to the attention of the Human Fertilisation and Embryology Authority  (HFEA) the shortcomings of clinic Z. Following this the HFEA required all 109 Fertility Clinics to audit their legal parenthood  records. A staggering 46 % of Clinics discovered anomalies in their legal parenthood consent forms. In September 2014 the HFEA wrote to all Clinics and advised them to seek legal advice if necessary and to also inform clients and their partners of the anomalies. All Fertility Clinics should therefore have been tightening up their administrative practices and assisting parents where there were  errors with parenthood forms. The case law clearly states that whatever the administrative mistakes of Fertility Clinics with parenthood forms, the Court can rectify them and make Declarations of Parentage .

This  case was the first to deal with an application for a Declaration of Parentage in  the context of a dispute about contact and where there was clear opposition from the biological parent to the Declaration of Parentage being made.  Unfortunately, the father in this case was very much let down by the Fertility Clinic. There is no doubt that the father would have re-established contact with his child months sooner if there had there  been proper disclosure of documents in a timely fashion. The Judge was very critical of the Clinic. She found it “alarming  and shocking” that there was a further case of this nature before the courts where there was “such striking ineptitude” from an organisation which is subject to statutory regulation and statutory monitoring by the HFEA. Clearly the case was not brought to light by the Clinic in their Legal Parenthood Audit and an investigation of this failing is to take place at the instigation of the Chief Inspector of the HFEA.

Not surprisingly, the Clinic did not oppose an order to pay all of the father’s legal costs in respect of his Declaration of Parentage application.

Read the full judgement by clicking here http://www.bailii.org/ew/cases/EWHC/Fam/2015/3601.html

If you need help or advice with any family  matter, please contact us to see if we can assist you.

Mother Granted Permission to Appeal Care and Placement Orders

Philcox Gray represented a mother in her successful application for permission to appeal a care and a placement order made at Newcastle County Court in February 2015 in respect of her son.

It was submitted on behalf of the mother that the judge failed to adopt the approach required in cases concerning placement orders by failing to follow the guidance of the recent case of Re B-S (children) in that the court failed to consider the effect on the child of removal from his mother’s care and did not set out the basis on which it was considered the mother’s future care would be likely to cause significant harm to the child.  The court therefore did not take the proper holistic approach when considering all placement options for the child nor did it properly balance the options of rehabilitation and adoption.

McFarlane LJ granted permission to appeal, noting the proposed appeal enjoyed “a real prospect of success.”

The Local Authority and Children’s Guardian recognised the arguments put forward on behalf of the mother and Lord MacFarlane’s provisional view of the merits of the appeal, they therefore offered no resistance to the appeal and a rehearing was ordered.

Throughout the appeal process the mother was represented by Philcox Gray who instructed Deirdre Fottrell QC of 1GC Chambers.

If you need help or advice with any family matter, please contact us to see if we can assist you.