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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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A stricter approach under the new CPR rules

07 Jun 2013, 16:17 by Priya Bakshi

Labels: barrister, barristers, high-court, judge, judgment, lawyer, particulars-of-claim

The impact of the Jackson reforms on the CPR rules is
showing, with a tougher approach displayed by the courts on missed deadlines. 

The case of Venulum Property Investments Ltd v Space Architecture & Others[2013] EWHC 1242 (TCC) was heard before the High Court. The Claimant applied for permission to extend time for service of the Particulars of Claim as the solicitors incorrectly calculated the deadline for service.

The courts' discretionary power to extend time in such circumstances is
governed by CPR 3.9. Mr Justice Edwards-Stuart recognised that this rule had been significantly amended from 1 April 2013. The old rule allowed the court to have a more general consideration with a list of nine factors to consider.  Under the new rule:

"The court will consider all the circumstances of the case, so as to
enable it to deal justly with the application, including the need-

(a) for litigation to be conducted efficiently and at proportionate
cost; and (b) to enforce compliance with rules, practice directions and orders."

Accordingly, the court refused to allow an extension for serving the
Particulars of Claim. In reaching this outcome the court considered the five year delay in bringing the claim, the claim
against the defendant not being strong and the fact that the claim for bad
faith was pleaded in vague terms. 

Mr Justice Edwards-Stuart concluded in his judgment, "when the circumstances are considered as a whole, particularly in the light of the stricter approach that must now be taken by the courts towards those who fail to comply with rules following the new changes to the CPR, this is a case where the court should refuse permission to extend time. The Claimant has taken quite long enough to bring these proceedings and enough is now enough."

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Andrew Willetts appointed Recorder

18 May 2009, 14:06 by John Snell

Labels: civil, judge, recorder

Chambers would like to congratulate Andrew Willetts on his appointment to the office of Recorder. Andrew will be sitting on the midlands circuit and we wish him well on this first stage of his judicial career.

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The use of expert evidence in fast track and multi-track cases

09 Jun 2008, 15:17 by Kate Richards

Labels: barristers, civil, evidence, expert, fast-track, judge, multi-track, solicitors

The Protocol for the Instruction of Experts to Give Evidence in Civil Claims (CPR Part 35 Protocol) states:

"Expert witnesses perform a vital role in civil litigation. It is essential that both those who instruct experts and experts themselves are given clear guidance as to what they are expected to do in civil proceedings."

This blog will aim to provide a summary of what is required by barristers and solicitors who are instructed on fast track or multi-track cases involving experts.

The first thing to bear in mind when an expert has been instructed is that generally expert evidence will be presented in a written report. This is unless the court directs otherwise. For claims allocated to the fast track an expert witness is not required to attend court unless it is necessary in the interests of justice. In particular, the court will have regard to the proportionality of the cost of attendance of the expert(s) to the value and complexity of the claim. Written questions may be put to the expert within 28 days of the service of the report. It is important to note that these questions must be for clarification purposes only unless by permission of the court or consent of the other party.

Usually a single joint expert will be appointed in fast track cases. However, in multi-track cases the appointment of separate experts is often appropriate where there are a number of substantial issues. For example, this can be particularly appropriate in clinical negligence cases where there may be two schools of thought concerning the medical issues involved.

Where expert evidence is required to be given orally at court the general principles governing witness handling are fundamental. Specifically with expert evidence there may be matters that are extremely complex in nature and parts of a report which are unintelligible. One of the main jobs for the advocate in asking supplementary questions in examination-in-chief should therefore be to ensure that the Judge can understand the expert's evidence!

In cross-examination of an expert witness an effective way of challenging their evidence is to prove that they are outside their expertise or that they are incompetent. It is also essential to dispute the validity of any inferences drawn in the formation of an expert opinion. One way of achieving this may be to identify the facts and instructions upon which the expert's evidence is based and demonstrate the falsity of these, thus in turn undermining the opinion. Unlike most other evidence, expert evidence usually requires re-examination. Clarification is often required given the likelihood for misunderstanding what has been stated in cross-examination.

Most importantly, in all civil cases where expert evidence is required mastery of the subject matter of the expertise is vital. A conference with the expert prior to the hearing can be a useful method of explaining areas of unfamiliarity.

Written by K Richards.

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