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Simon Reed featured in Men's Health Magazine

18 Nov 2013, 12:38 by John Snell

Labels: barrister, lawyer, men's-health-magazine, simon-reed

Simon Reed has been featured in the December edition of Men's Health Magazine. The article (Rage on a Plate) looks at how different professionals prepare for "battle" and  includes tennis player Novak Djokovic and boxer David Haye.

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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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Delay caused by Tribunal Service results in claim being struck out

11 Sep 2013, 15:41 by Priya Bakshi

Labels: appeal, barrister, employment-law, employment-tribunal, lawyer, unfair-dismissal

The Employment Appeal Tribunal in the case of Elliott v The Joseph Whitworth Centre Ltd. [2013] UKEAT 0030_13_1507 held that the claim was permissibly struck out by the Employment Judge because a fair hearing was impossible. A two year delay in dealing with the Claimant's claim form, by the Tribunal Service in not serving the ET1 and the failure of the Claimant's representatives to chase up the case, was "inordinate and inexcusable". 

Mr Elliot presented his claim for unfair dismissal on 30 April 2010. The Tribunal Service then failed to take action in respect of the claim form due to administrative difficulties. However the Claimant's representatives also did nothing to chase the matter up. It was only in February 2012 that the Claimant's representatives finally made enquiries, and the claim form was then served on the Respondent.

As a result, the Respondent applied to have the matter struck out under rule 18(7)(f) on the ground that it was no longer possible to have a fair hearing in these proceedings. They argued that memories would have faded and so would be prejudiced if the case were to be heard. 

The Employment Judge considered the claim form and the submissions made by the parties. No evidence was given at the hearing. The Tribunal agreed with the Respondent and struck out the claim.

Mr Elliot appealed on the basis that as the Employment Judge had not heard evidence, it could not be concluded that memories had faded.


The EAT dismissed the appeal. Whether it was possible to have a fair hearing was a question of fact. Mr Elliot had kept notes of meetings however as the Respondent had not, or notes were no longer available, much depended on the memory of the relevant officers. Fading memory is a reason why there cannot be a fair trial. The EAT held that the relevant materials had been considered and agreed that the delay was inordinate
and inexcusable. The decision concerning where the prejudice lay was also
permissible. The practical consequence of this is that Mr Elliot's remedy
likely lay elsewhere.  

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Family visitor visa appeals abolished

02 Jul 2013, 09:45 by Priya Bakshi

Labels: appeal, barrister, human-rights, immigration, lawyer, race-discrimination, visa-appeal, visa-application

Applicants refused entry to the UK as a family visitor can no longer appeal the decision as of 25 June 2013. There will be no right to appeal
unless the appeal is on human rights or race discrimination grounds. 

Where a visa application is refused the entry clearance officer will send or give the notice of refusal to the applicant, which will list the reasons for the refusal. Prior to the change in the law, applicants could appeal the refusal decision and submit further information to support their visa application. Under the new law, any applicant refused entry can only now reapply for the visa. It must be ensured that this is supported by additional documents or a written explanation fully addressing the reasons why the previous application was refused. 

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