Brief history of Newwalk Chambers



Find by month


Find by label

Blog

Chambers Blog

Entries matching label family-law:

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

Lifting the Corporate Veil in Matrimonial Law

25 Jun 2013, 09:25 by Priya Bakshi

Labels: barrister, commercial, commercial-law, court, divorce, family-law, fraud, lawyer, legal-proceedings, matrimonial-law

In commercial cases the key principle is that a company is independent of its shareholders and so one cannot get at the company's assets in legal proceedings unless there has been fraudulent or dishonest use of the company, 

On 12 June 2013 the Supreme Court unanimously allowed the corporate veil to be lifted in financial divorce proceedings in the case of Prest v Petrodel Resources Limited and others [2013] UKSC 34. The question in this appeal brought by Mrs Prest was whether the court had power to order the transfer of properties to her given that they legally belonged not to Mr Prest but to his companies. 

Under the Matrimonial Causes Act 1973 section 24(1), it states that the court may order that "a party to the marriage shall transfer to the other party...such property as may be so specified, being property to which the first-mentioned party is entitled, either in possession or reversion."

On the facts of this case, Mr Prest, and not his companies, originally provided the funds for the acquisition of the properties. He had control of the company assets as if they were his own during the marriage. Mr Prest concealing these facts coupled with the continuous failure to cooperate with disclosure and transparency, the Court inferred that both he and the companies were attempting to conceal the true beneficial ownership of the properties. 

Mrs Prest won in her appeal and the Court held that the properties invested in Mr Prest's companies were on trust for him. It was ordered that these assets be handed over to his wife. Therefore, in these exceptional circumstances, the Court disregarded the corporate veil in order to give effective relief. 

This landmark ruling has provided some clarity as to when the courts can lift the corporate veil, and that business people cannot deliberately hide assets in companies to protect them in the event of a divorce.

 

0 comments

Legal Aid Changes Affect Family Law Cases

30 Apr 2013, 15:22 by Priya Bakshi

Labels: barrister, child-abduction, direct-access, domestic-violence, family-law, forced-marriage, legal-aid, private-family-law, public-family-law, solicitor

From 1st April 2013 the legal aid reforms have affected the availability
of legal aid to civil law cases and in particular, to family law cases.

Reforms to the Legal Aid, Sentencing and Punishment of Offenders Act
2012 (LASPO) have therefore resulted in legal aid funding being withdrawn for common family law disputes. These include divorce and child custody cases.  

Legal aid is now only available to cases where there is evidence of
domestic abuse within the relationship or where issues of child protection are involved. More specifically, legal aid will be available for:

  • Public family law regarding protection of children (care proceedings);
  • Private family law with evidence of child abuse;
  • Child abduction;
  • Representation of children in private family cases;
  • Legal advice in support of mediation;
  • Domestic violence injunction cases;
  • Forced marriage protection orders.

For cases no longer eligible for legal aid funding, one alternative is to pay privately. Legal advice can be sought from a barrister through a solicitor, or alternatively directly from a barrister under direct access.

 

0 comments

Public access, direct access to barristers

13 Sep 2011, 15:52 by John Snell

Labels: barrister, civil-law, direct-access, drink-driving, family-law, lawyer, licensing, public-access

Public access, or as it is also sometimes known direct access, to a barrister commenced in 2004. This was allowed in order to give lay clients a wider choice of legal services which it was beleived would be quicker and cheaper for them.

 Public access, direct access is becoming an increasingly large proportion of work that is done by the bar. However, not all barristers can work directly with lay clients. When dealing with a litigant in person there is often special care that is required and therefore more senior barristers tend to do public access or direct access and they are required to undertake a special course prior to undertaking work for lay clients.

From it's inception, direct access, public access has worked well which has led to an extension of the areas of work that barristers can do under this scheme. In particular family work has seen a marked increase in access to the bar. Also, criminal work has proved a popular area for lay clients in certain offences. These include speeding offences, drink driving, traffic light offences, RSPCA cases and other matters of this nature. Another growth area has been licensing of pubs, clubs and restaurants as well as other social venues.

0 comments

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.

0 comments


Displaying entries 1-5 of 11. 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