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New Guidance in Adoption Cases - Re B-S [2013] EWCA Civ 1146

02 Oct 2013, 16:30 by Priya Bakshi

Labels: adoption, barrister, care, children-act, court-of-appeal, direct-access, lawyer, legal-services, public-access

The Court of Appeal handed down a unanimous judgment on 17 September 2013 and gave guidance on the approach to be followed in cases involving adoption, and clarified the test for granting leave to oppose an adoption order under the Adoption and Children Act 2002 section 47(5)

In Re B-S the mother, M, had two daughters. Living in vulnerable circumstances, the children were removed from M's care in February 2011 and were subject to a final care and placement order in October 2011. Contact between M and her daughters ceased in December 2011 and the children were subsequently placed with prospective adopters. M applied for leave to oppose the adoption order under section 47(5) on the ground that there had been a change in circumstances since the care and placement orders were made. M had left her abusive partner, met her present husband who was serving in the armed forces and with whom she had another child, and of whom the local authority had not issued public law proceedings and had in fact written a positive assessment.

Although it was acknowledged that M's circumstances had changed, Parker
J refused M permission to oppose the adoption because in applying the welfare test it was found that it was entirely improbable that she would succeed in having the children returned to her.

McFarlane LJ subsequently granted M permission to appeal against the
refusal to grant her leave to oppose the adoption of her children. M's appeal was ultimately refused on all grounds. The judgment gave clear guidance on how to approach adoption cases. 

(1) There should be proper evidence from both the local authority and
from the guardian addressing all the options possible and there should be an analysis of each option. In particular there must be an analysis of the pros and cons and a fully reasoned recommendation. The judge should also evaluate all the options and undertake a global holistic and multi-faced evaluation of the child's welfare taking into account all the positives and negatives of each option. A proper focused attention to the specifics should also be given. 

(2) Under section 47(5) the court has to ask itself two questions: has there been a change in circumstances; and if so, should leave to oppose be given.
Where there has been a change in circumstances, the court would then have to consider: the parent's ultimate prospect of success in resisting the adoption order if given leave to oppose; and the impact on the child if the parent was, or was not, given leave to oppose, bearing in mind that the child's welfare is paramount. 

(3) Following the recent case of Re B (A Child) [2013] UKSC 33, the appellate court should intervene whenever the judge was wrong. In the instant case the judge's refusal was not wrong. The judge accepted that M's circumstances had significantly changed, gave regard to the welfare checklist and recognised that the children's interests were paramount. Attention was drawn to key facts and therefore the judge's conclusion was not wrong.

 

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Child Abductions on the Increase

19 Aug 2009, 15:07 by Pauline Walker

Labels: abduction, barrister, children-act, family, family-law, lawyer

Government figures obtained under the Freedom of Information Act 2000 show a significant increase in the number of child abductions compared with 2005. The figures for 2008 show a 20% increase on the number of abductions from 2005 with almost 500 children taken abroad illegally. This represents a 93% increase compared to figures for 1995. Of the 336 cases reported to the authorities in the UK, most children were taken to Pakistan (30 cases), followed by the USA (23), Ireland (22) and Spain (21). Other destinations that featured highly were Egypt, France and Australia. 134 of the cases involved children being taken to non-Hague Convention countries.

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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.

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Adoption of child - biological father not informed of birth

04 Jul 2008, 17:14 by Joseph Neville

Labels: adoption, children-act, family, social-services

In family law, where a mother puts her child up for adoption the Adoption and Children Act 2002 requires that the court examine certain factors to ensure that the adoption would be in the child's best interests.

The recent case of Re C v XYX County Council concerned a 19 year old mother who had become pregnant after a one night stand. She had only discovered the pregnancy at a late stage and did not believe she could care for the child. She therefore left the child at hospital following its birth, indicating that she wished for it to be adopted.

In many cases the father or the mother's extended family would be the first point of call to care for the child. Here, the mother would not identify the father to social services or the court, nor would she disclose the pregnancy and birth to her family or allow them to be contacted. She identified reasons why she felt that her family would not provide suitable care.

At first instance it was held that social services were under an obligation to inform themselves of as much information about the background of the family and father as they were able.

On appeal it was held that such enquiries were only to be undertaken where they were in the best interests of the child, and this would only be so where they genuinely further the prospect of finding a long-term carer for the child without delay. In this case it was more important to look at the effect of delay in placing the child with a long term carer. There was therefore no requirement for social services or the court to inform the mother's family or indeed the actual father of the child, who remains unaware that he has a child at all.

Written by Joseph Neville and Rebecca Fitton-Brown, Barristers at New Walk Chambers, specialising in Family Law.

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