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Entries for September 2013:

Family Care Proceedings - a risk of future harm

26 Sep 2013, 17:39 by Priya Bakshi

Labels: adoption, appeal, barrister, care, court, direct-access, family-law, interim-care-order, judge, lawyer, public-access, supervised-contact

The case of Re B (A Child) [2013] UKSC 33 concerned an appeal made by parents to the Supreme Court in relation to a final care order made under Section 31 of the Children Act 1989. 

Both parents suffered from psychological problems. The mother had been diagnosed with somatisation disorder and a psychiatric condition involving the deliberate fabrication or exaggeration of symptoms. She had had significant difficulties in her life early on, having been abused by her step-father. She also had criminal convictions relating to fraud and dishonesty. The father too had a history of criminality and drug abuse.    

The child, A, was removed from her parents at birth and placed in foster care under an interim care order.  While the child was in foster care, the parents frequently had supervised contact with her, developing a positive and committed relationship. The question was not whether the child
had suffered harm attributable to the parents' care but whether the child was likely to suffer significant harm due to the risks posed by the parents. The local authority's plan was adoption for the child.

The trial judge held that the parents did pose a risk to the child. The bond formed between the A and her parents was not doubted. However if the child was placed in her parents' care there was a risk of significant harm to A caused by the mother's somatisation disorder and her psychiatric condition, and that A might grow up to copy her mother's behaviour. It was also found that the father was not capable of protecting A from harm. Therefore in weighing up all the factors, a care order with a view to adoption was needed to prevent such harm to A. The Court of Appeal upheld that judgment.

The Supreme Court too agreed with the trial judge by a majority of 4:1 and dismissed the parents appeal, concluding that the threshold conditions for making the care order had been satisfied in this case. The Supreme Court dealt with a number of issues.    

Before a care order is made the judge has to be satisfied that: (a) the child is suffering or is likely to suffer significant harm; and (b) the harm or likelihood of harm is attributable to the care likely to be given to the child if a care order is not made, not being what it would be reasonable to expect a parent to give to the child, or to the child's being beyond parental control. A common sense approach should be taken to the meaning of ‘significant'. ‘Likelihood' was confirmed to mean no more than a ‘real possibility'.

The causation required is only as between the care and the harm but in
this case the character of the parents was relevant to each stage of the
inquiry. 

Article 8 of the ECHR is not engaged when the court assesses whether
there was ‘significant harm'. It is engaged only once the court determines whether or not a care or supervision order should be made.  If the decision is that adoption is necessary, or that a child should be placed under care with a view to adoption, a high degree of justification is needed under Article 8. Adoption must be the last resort and all other options must be explored. 

The appellate court must approach cautiously in overturning the trial
judge's decision; the test is whether the decision was ‘wrong' (not ‘plainly
wrong'). Further, where Convention rights are engaged, the appellate court is not required to determine afresh issues; it is only required to review the
lower court's decision.

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Third party harassment provisions in Equality Act to be repealed

19 Sep 2013, 13:02 by Priya Bakshi

Labels: barrister, direct-access, employee, employer, harrassment, legal-advice, public-access

Under section 40 of the Equality Act 2010 an employer can be liable if their employees are harassed by third parties where: 

  • The third party harasses the employee in the course of employment; 
  • The employer fails to take such reasonable steps as would have been reasonably practicable to prevent the harassment; and 
  • The employer knew that the employee had been harassed by a third party on at least two other occasions. 

This is now being repealed, with effect from 1 October 2013, under The Enterprise and Regulatory Reform Act 2013. However employers will still have a duty to protect workers. Employees who suffer harassment from third parties will not be left unprotected. Depending on the circumstances of the case, there will be other possible ways to make a claim using the exiting legal framework. Some include:

(1) Equality Act 2010 - the general harassment provisions remain intact.

(2) Protection from Harassment Act 1997 - provides the employee protection from harassment and imposes liability on the third party directly.

(3) Constructive Dismissal - could be argued that the harassment amounts to a fundamental breach of their employment contract entitling them to resign. 

Legal advice can be sought from a barrister through a solicitor, or alternatively directly from a barrister under direct access.

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Delay caused by Tribunal Service results in claim being struck out

11 Sep 2013, 15:41 by Priya Bakshi

Labels: appeal, barrister, employment-law, employment-tribunal, lawyer, unfair-dismissal

The Employment Appeal Tribunal in the case of Elliott v The Joseph Whitworth Centre Ltd. [2013] UKEAT 0030_13_1507 held that the claim was permissibly struck out by the Employment Judge because a fair hearing was impossible. A two year delay in dealing with the Claimant's claim form, by the Tribunal Service in not serving the ET1 and the failure of the Claimant's representatives to chase up the case, was "inordinate and inexcusable". 

Mr Elliot presented his claim for unfair dismissal on 30 April 2010. The Tribunal Service then failed to take action in respect of the claim form due to administrative difficulties. However the Claimant's representatives also did nothing to chase the matter up. It was only in February 2012 that the Claimant's representatives finally made enquiries, and the claim form was then served on the Respondent.

As a result, the Respondent applied to have the matter struck out under rule 18(7)(f) on the ground that it was no longer possible to have a fair hearing in these proceedings. They argued that memories would have faded and so would be prejudiced if the case were to be heard. 

The Employment Judge considered the claim form and the submissions made by the parties. No evidence was given at the hearing. The Tribunal agreed with the Respondent and struck out the claim.

Mr Elliot appealed on the basis that as the Employment Judge had not heard evidence, it could not be concluded that memories had faded.


The EAT dismissed the appeal. Whether it was possible to have a fair hearing was a question of fact. Mr Elliot had kept notes of meetings however as the Respondent had not, or notes were no longer available, much depended on the memory of the relevant officers. Fading memory is a reason why there cannot be a fair trial. The EAT held that the relevant materials had been considered and agreed that the delay was inordinate
and inexcusable. The decision concerning where the prejudice lay was also
permissible. The practical consequence of this is that Mr Elliot's remedy
likely lay elsewhere.  

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New CPS Guidelines for Football Hooligans

02 Sep 2013, 09:59 by Priya Bakshi

Labels: abuse, barrister, criminal-charges, discriminatory-chanting, football-banning-orders, football-hooligans, hate-crime, legal-services, world-cup

The Crown Prosecution Service and the Association of Chief Police Officers published a joint policy on 23 August 2013 for dealing with violence, disorder, criminal damage and abuse in and around football matches this
season. Moreover, offences of racist and homophobic and discriminatory chanting and abuse and other types of hate crime will also be dealt with robustly.

This policy has come in force ahead of the World Cup to be held next year. 

The guidelines are a reminder of the use of Football Banning Orders (FBOs) which have a minimum duration of 3 years. Whenever there is sufficient evidence to bring an offender before a court on criminal charges and where an FBO is regarded as necessary, appropriate action will be taken. Those guilty of ticket touting will also face the possibility of an FBO.

The guidelines further emphasise that because of the duration of the FBO, anyone who receives an FBO this year will therefore be prevented to travel for the World Cup 2013 in Brazil and the Euros 2016 in France. Offenders will be required to surrender their passports and will be prevented from travelling anywhere abroad during the tournaments.

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