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Entries matching label court-of-appeal:

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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Credit Hire: Challenging the period of hire

29 Aug 2013, 11:49 by Priya Bakshi

Labels: barrister, claimant, court-of-appeal, credit-hire, defendant, direct-access, public-access, road-traffic-accident

In many credit hire claims, the defendant seeks to challenge and reduce the charges. The recent Court of Appeal decision in Opoku v Tintas (July 2013) is likely to be significant in relation to long periods of hire. 

The claimant and the defendant were involved in a road traffic accident. The defendant drove into the back of the claimant's car and the repairs were later estimated at £3,400. The defendant denied liability and further denied that all the damage was caused by this accident. The claimant was impecunious and so stored his own vehicle and took out a hire vehicle pending repairs. Over a two year period the cost of hiring the vehicle amounted to £130,000 plus £19,000 for the cost of storing his own vehicle.

The judge at first instance held that the defendant caused the accident and all the damage was caused by this accident. However it was found that even though the claimant was impecunious, he failed to mitigate his loss. The claimant should have had his own vehicle repaired sooner and it was unreasonable for the claimant not to do so. The claimant was therefore awarded £63,000, equating to less than half the pleaded loss.

The Court of Appeal upheld the trial judge's decision. Although it may not have been reasonable for the claimant to repair his vehicle immediately after the accident, there came a time when it was reasonable to do so. The key point was the difference between the cost of repairing the vehicle at £3,400 compared with the cost of hiring a vehicle at £5000 per month.

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Ancillary Relief

05 Aug 2010, 16:27 by Rebecca Fitton-Brown

Labels: civil, court-of-appeal, criminal, divorce, family

The Court of Appeal has ruled that a husband or wife who comes across documents showing that their spouse is concealing assets in divorce proceedings, can no longer use such documents. If the husband or wife has taken copies of such documents for the use of their legal advisors, it is unlawful and they must be handed back. It is not clear how far the use of any information derived from such documents may be restricted e.g. the mere existence of an undisclosed bank account.

This is in line with civil and criminal laws, but will make it more difficult to prove non-disclosure of assets in some matrimonial cases.

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

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TUPE and Administration

23 Apr 2008, 13:15 by Joseph Neville

Labels: administration, court-of-appeal, employment, insolvency, machinations, tupe, unfair-dismissal

  The recent Court of Appeal case of Dynamex Friction Ltd & Anor v Amicus & Ors is a fascinating look at the impact upon employees where a company enters administration and the business subsequently passes to a phoenix company. In many cases the owners and controllers of the phoenix are the same individuals who drove the original company into administration in the first place.

The Transfer of Undertakings (Protection of Employment) Regulations 2006 are designed to provide rights to employees where their employment transfers from one person or company to another. It provides that employees will have a claim of unfair dismissal if they were dismissed in consequence of the transfer. If the business had simply been sold on without the intervening administration, then the employees' employment would have transferred with it.

In this case however, when the company went into administration, the administrator decided that there wasn't enough money in the company to pay the employees so dismissed them all. He then sold on the business to a company which fell into the eventual control of the original director. Here the reason for the dismissal was not a transfer, it was because the administrator couldn't afford the wage bill.

The employees contended that their dismissal was the consequence of the transfer, as they alleged the overall process was a result of the ‘machinations' of the previous director and that he had planned it all along. Had this argument been successful it would have struck an important blow for the many employees who find themselves in this situation. The Court of Appeal however, by a majority, found that once it was established the dismissing officer made his decision independently, and for a particular reason, it was impossible to look behind that reason at any surrounding context or scheming.

Written by Joseph Neville, Pupil at New Walk Chambers, specialising in Employment Law.

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European Court of Human Rights and the House of Lords

14 Mar 2008, 13:58 by Geraint Jones

Labels: court-of-appeal, european-court, house-of-lords, human-rights

  Geraint Jones Q.C. has recently been involved in the first case to test whether the House of Lords decision in Arthur J S Hall & Co  v  Simons (2002) 1 AC 615 had/has retrospective effect. In Awoyomi v Radford & Postill  Mr. Justice Lloyd-Jones decided, contrary to the common position taken by Leading Counsel on each side, that despite their agreement that the House of Lords decision had only prospective effect, it did in fact have retrospective effect. That is, it was declaratory of what the law has always been, as opposed to being a change in the law with the House of Lords acting in a quasi-legislative way. The case has now been referred to the European Court of  Human Rights on the basis that the High Court decision totally denies the Claimant in that case from access to the Courts. The Court of Appeal,  Lord Justice Lawrence Collins, refused leave to appeal. In his order dated 30th August 2007 he made no mention of the applicant's submissions regarding Convention rights. In the absence of a prospective reading of the rule in Hall v. Simons, no other domestic remedy was available to the applicant. Accordingly, the applicant has not been provided with an effective remedy and that is the issue to be argued before the ECHR.

Written by Geraint Jones, Barrister at New Walk Chambers, Specialising in Arbitration, Environmental Law, European Union Law, Public Law, Professional Negligence and Sports Law.

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