Brief history of Newwalk Chambers



Find by month


Find by label

Blog

Chambers Blog

Entries matching label appeal:

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.

0 comments

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.  

0 comments

Family visitor visa appeals abolished

02 Jul 2013, 09:45 by Priya Bakshi

Labels: appeal, barrister, human-rights, immigration, lawyer, race-discrimination, visa-appeal, visa-application

Applicants refused entry to the UK as a family visitor can no longer appeal the decision as of 25 June 2013. There will be no right to appeal
unless the appeal is on human rights or race discrimination grounds. 

Where a visa application is refused the entry clearance officer will send or give the notice of refusal to the applicant, which will list the reasons for the refusal. Prior to the change in the law, applicants could appeal the refusal decision and submit further information to support their visa application. Under the new law, any applicant refused entry can only now reapply for the visa. It must be ensured that this is supported by additional documents or a written explanation fully addressing the reasons why the previous application was refused. 

0 comments

Quicker justice for motoring offences

27 Jun 2013, 11:25 by Priya Bakshi

Labels: appeal, barrister, careless-driving-offences, fines, lawyer, penalty-points

From July, police will have powers to issue on the spot fines and fixed
penalty points
for careless driving offences that would currently have to go to court. 

Police will have powers to issue a fine of £100 and 3 penalty points on licences to middle lane hoggers on the motorway. Motorway tailgaters will also face the same fine and penalty points. 

Other changes include the fine for driving whilst using a mobile phone or not wearing a seatbelt increasing from £40 to £100.

However drivers will still be afforded the opportunity to appeal any decision and go through the court system. 

The more serious offences will continue to go through the courts and fixed points and fines will not be issued on the spot. This is because, if found guilty, the courts have the power to issue heftier fines and penalties.     

0 comments

School appeal news

16 Jun 2009, 16:21 by Ian Jones

Labels: admission, admission-appeal, admission-appeals, admissions, advice, appeal, application, barrister, civil-law, daily-mail, daily-telegraph, education, governing-body, guardian-newspaper, ian-jones, lawyer, primary, school, school-admission, school-admissions, school-appeal, school-appeals, schools, schools-adjudicator, schools-appeals, secondary, secondary-school

Ian Jones is quoted extensively in the newspapers this week as figures are released showing that 1 in 10 primary school children were denied a place at the school preferred by their parents. 

For those who want to follow the media discussion, the story is taken up by the Daily Telegraph, the Daily Mail, the Independent and the Guardian newspapers.

School appeals are likely to feature further in the news over the next few weeks, with more school appeal statistics due out on Thursday and with a forthcoming High Court ruling on the powers of appeal panels.

 Ian Jones is a barrister specialising in school appeals and education law at New Walk Chambers, Leicester.

0 comments


Displaying entries 1-5 of 7. Older entries »



The New Walk Chambers Blog page is only intended to provide an accessible forum for a general overview and discussion of the topics posted on it. It is not meant to be a substitute for taking legal advice in any particular situation and should not be so used. Neither New Walk Chambers nor the author(s) accept any responsibility for anything done or not done on the basis of the contents of the Blog page.


Website developed by Focus New Media