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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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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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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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The Expansion of Direct Access Work

15 May 2013, 15:57 by Priya Bakshi

Labels: barrister, direct-access, junior-barristers, legal, legal-aid, public-access, solicitor

Direct access allows you to instruct a barrister directly, without going
through a solicitor. The Legal Services Board has approved changes to rules governing direct access work.

From 1 April 2013, barristers can take direct instructions from clients
who may be eligible for legal aid but have decided not to take up this option.

Further changes will also result in barristers of less than three years'
Call being able to deal directly with clients with the introduction of new
training. This will be in place by Autumn 2013. 

This will therefore allow more clients to go directly to a barrister,
and also allow junior barristers to undertake direct access work.

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