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Entries for November 2008:

Special Educational Needs new SENCO Regulations

28 Nov 2008, 15:55 by Ian Jones

Labels: barrister, education, governing-body, head-teacher, qts, qualified-teacher-status, school, senco, special-educational-needs, teacher

New regulations have been laid before Parliament requiring Special Educational Needs Co-ordinators in schools (SENCOs) to be qualified teachers.  The Education (Special Educational Needs Co-ordinators) (England) Regulations 2008 come into force on 1st September 2009.  By that date, all SENCOs need to have qualified teacher status (QTS) and to be teaching at their school - which would rule out sharing a SENCO between several schools.  The only exceptions are (a) where the head teacher is the SENCO but is not in fact a qualified teacher (legally possible) and (b) where the SENCO has been in post for at least six months on 31st August 2009 and the school's governing body is satisfied that he/she is taking steps to obtain QTS and stands a reasonable prospect of achieving it by September 2011.  The regulations do not say what will happen if such a person fails to obtain QTS by that date.

Written by Ian Jones, Barrister at New Walk Chambers, specialising in Education Law


Fireworks and Horses - A Disastrous Combination

17 Nov 2008, 10:42 by Nathalie Bull

Labels: animal-welfare, barrister, equine, fine, firework, horse, imprisonment, law, lawyer

Every year many horses suffer as a direct result of fireworks being let off in close proximity to their stables.  In extreme cases death, injury or damage to property can ensue.  Fireworks must not be set off near horses or any livestock in fields or close to their stables.   It is a criminal offence pursuant to section 4 of the Animal Welfare Act 2006 for a person to cause an animal to suffer when he knew or ought reasonably to have known that the animal would suffer unnecessarily.  The maximum penalty for this offence is imprisonment for a term not exceeding 51 weeks, or/and a fine not exceeding £20,000.

Written by Nathalie Bull, Barrister at New Walk Chambers, specialising in Equine Law.


New contact order enforcement powers to come into force

05 Nov 2008, 13:04 by Rebecca Fitton-Brown

Labels: cafcass, children-act, contact, family-law

The long heralded changes to enforcement of section 8 orders under the Children Act 1989 come into force at the end of this month. Many groups, especially fathers' campaigning organisations, have long complained that court orders in children cases are easily flouted by recalcitrant parents, especially those with whom the child lives.

The new enforcement powers are as follows:

  • Activity requirements and conditions - As well as ordering contact, the court will have the power to order that a particular activity is undertaken during the period of contact. This could range from something as simple as a particular leisure activity, to something tailored to the parent and child, such as programmes designed to facilitate and encourage contact. The court may also make conditional contact orders, where the contact order is conditional on a party taking part in a particular activity, for example counselling.
  • Contact Monitoring - The court will be able to order that a CAFCASS officer monitor contact to report on how it goes. This is something which is sometimes done voluntarily by CAFCASS officers, but is resource-sensitive.
  • Compensation - the non-complying party can be ordered to pay compensation to another party who has suffered financial loss through the non-compliance. This is likely to take the form of petrol / travel costs and loss of earnings incurred through attending contact sessions where the child is not then made available.
  • Warning Notices - The existing practice is to place a penal notice on a contact order after it is breached for the first time; a further breach entailing committal proceedings. The new regime will see a warning notice attached to a contact order when it is first made, meaning the court's enforcement powers are available to it on the first breach.
  • Enforcement Orders - these provide a new quasi-criminal sanction for failure to comply with an order. If the court is satisfied beyond reasonable doubt that a part has failed to comply, without reasonable excuse, it may make an enforcement order on the application of a party. This requires the party to perform unpaid work in the same way as a community order imposed in criminal courts following a conviction. Compliance with the order is monitored by a CAFCASS officer, and a report made to the court.


The Act containing the changes can be found here, and the statutory instrument creating changes to the Family Procedure Rules together with the new forms can be found here. They all come into force on 25th November 2008.


Reaction to the new provisions has been mixed. A survey by the University of Kent found that less than half of family law professionals thought the new provisions would be sufficient to deter parties from breaching orders, although a majority agreed that the existing means of enforcement were also inadequate. The Ministry of Justice states that its consultation produced largely positive results. It also remains to be seen what effect the greater involvement of CAFCASS officers will have, given how woefully underfunded the service is at present.

Written by Rebecca Fitton-Brown, Barrister at New Walk Chambers, specialising in Family Law.


School admissions decision overturned in High Court

04 Nov 2008, 12:08 by John Snell

Labels: admission, advice, appeal, barrister, education, high-court, lawyer, school-appeal, schools-adjudicator

 A school admissions policy has been reinstated this week after a High Court ruling. Drayton Manor High School had earlier been ordered by the Schools Adjudicator to change its admission policy because ‘it indirectly discriminated against children form disadvantaged backgrounds'. However, the High Court has now ruled the Adjudicator's decision unlawful.

Ian Jones, a barrister specializing in school appeals and education law at New Walk Chambers, comments: "The Schools Adjudicator has a team of barristers to trawl through and find fault with school admission policies. Most schools, especially voluntary-aided/ church  schools, do not have any legal advice when they draw up their admissions policy. Parents are placed in an even more difficult position." Mr. Jones adds:  "Any school needing to review its admissions policy should seek professional advice at any early stage."


Direct Access: Compromise Agreements

03 Nov 2008, 10:48 by Robert Rees

Labels: compromise-agreements, contract, direct-access, employee, employment, employment-tribunal, lawyers

  As the recession looms there will be many employers wishing to relieve themselves of staff to save costs. Many will prefer their employees to leave voluntarily and to sign compromise agreements. These when properly made lawfully prevent employees going to employment tribunals to  contest the circumstances of their leaving. Employers will sweeten the pill by agreeing to pay and ex-gratia lump sum. Barristers through the direct access scheme are amongst qualified lawyers who are allowed to sign these agreements to make them lawful as preventing employees from going to employment tribunals.

In case an employee has in fact been guilty of some behaviour which would otherwise have entitled the employer to dismiss, prudent employers can include a clause or warranty to the effect that the money payable under the compromise agreement will not in fact be paid if it is discovered that indeed the employee has been guilty of something which would have given the employer the right to dismiss. Such a clause can be termed a warranty along these lines, the employee agreeing as follows:

"You warrant as a strict condition of this agreement that there are no circumstances of which you are aware or of which you ought reasonably to be aware which would constitute a repudiatory breach on your part of your contract of employment which would entitle or have entitled the company to terminate your employment without notice."

In Collidge v Freeport plc [2008] IRLR 697 an employee was found to have been guilty of financial impropriety prior to a payment of £445k, under a compromise agreement and so no payment was made by the employer. The Court of Appeal upheld the judge's unsurprising finding that such a clause was a condition precedent for payment under the compromise agreement and the employer did not have to make the payment. Mr C's warranty was a condition, a sina qua non, of the employer's obligations to pay. The warranty was a pre-condition of the employers liability to perform its obligations under the contract.

Writen by Robert Rees, Barrister at New Walk Chambers, specialising in direct access, employment law and compromise agreements.


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