Sport Relief Bake Off 2016

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Creighton & Partners raised money for Sport Relief on Friday 18th March 2016 by holding a Bake-Off at their London and Staines offices. Everyone pitched in to make the day extra-special including decorating the office, making Mary Berry and Paul Hollywood masks and baking lots of delicious treats! Paralegals, Alice Clayson and Ben Dos Santos brought in home-made cupcakes and brownies, Legal Executive, Jacqui Cox made a mouth-watering lemon drizzle and a yummy Victoria Sponge and Clare Armstrong made red velvet and vanilla cupcakes.

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The bake sale was very popular within the building of the London office and they were told that they were the talk of the offices upstairs!

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Of course, Bake Off wouldn’t be Bake Off without Judges Mary Berry and Paul Hollywood who were certainly impressed with this year’s contestants. Jacqui was victorious with her Victoria sponge becoming the London office’s Star Baker and Clare Armstrong was a worthy winner with her cupcakes becoming the Staines office’s Star Baker!

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We had a blast raising £202.61 for a great cause. Thanks to all those who contributed.

By Alice Clayson and Nusrat Chauhan

Alice Clayson is Paralegal to Gemma Neath

Nusrat Chauhan is Paralegal to Hannah Fairhurst and Suki Bahia 

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Misuse of s20 Children Act 1989

The misuse of section 20 Children Act 1989 and guidance for future good practice – Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112

An important decision of the Court of Appeal was handed down in November 2015, which should help to guide local authorities and improve their practice in relation to the use of section 20 Children Act (CA from here-on-in) 1989 throughout the remainder of 2016 and beyond.

In this case, Sir James Munby, President of the Family Division, stated that the “misuse and abuse of section 20…is wrong (and) it will no longer be tolerated”. He commented on the unacceptable delay in proceedings. He suggested that local authorities which use section 20 “as a prelude to care proceedings for lengthy periods”, or which fail to follow the good practice identified by him in his judgment, which I will discuss later, can expect to be “subjected to probing questioning by the court”.

The present case

The case in which the judgment was made was an appeal brought by a local authority against a decision of HHJ Bellamy at the final hearing of care and placement order proceedings. It related to two Hungarian children whose mother was Hungarian and father was Hungarian/Roma. The children had been placed in foster care with an English family. The parents of the children had agreed to them being accommodated by the local authority under section 20 CA 1989. The mother applied for an order regarding jurisdiction. The court granted the mother’s application for an order requesting the Hungarian court to assume jurisdiction in the adoption proceedings, therefore transferring proceedings to Hungary, pursuant Article 15 of Council Regulation (EC) no 2201/2003.

The essential issue in the appeal was whether HHJ Bellamy was correct to proceed under Article 15. The Court of Appeal dismissed the appeal of the local authority, therefore confirming the initial judgment.

However, during the hearing, the issues explored by Sir James Munby broadened. One of the issues that arose, which I will be focusing on in this article, was the use of section 20 CA 1989.

Section 20 Children Act 1989

I will now concentrate on the misuse of Section 20 within this case, and indeed other cases, and how Sir James Munby not only highlighted the shortcomings of the local authority in this case, but also set out good practice which other local authorities should follow in the future.

The law reads as follows:

Section 20 – Provision of accommodation for children: general
(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—

(a) there being no person who has parental responsibility for him;
(b) his being lost or having been abandoned; or
(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

Recently, there have been numerous cases where local authorities have been criticised for accommodating children under section 20 agreements for too long a time period before proceedings are issued. This inevitably causes delay and leaves the children’s future hanging in the balance, creating much uncertainty for them. It is thought that perhaps one reason why local authorities are delaying issuing proceedings is to use it as a tool to help keep within the 26 week timetable that begins from the time that proceedings are issued. It can be highly damaging for the children though, especially given that they are deprived of having a children’s guardian to represent their interests until proceedings are issued, and indeed goes against the very premise and purpose of attempts to limit proceedings to 26 weeks.

In the present case the children were placed in accommodation in May 2013 in accordance with section 20. However, care proceedings were not issued until January 2014, some 8 months later. Sir James Munby reasoned that although is some cases section 20 may be used effectively as a short-term measure to prevent the commencement of care proceedings, the use of it to delay proceedings being issued for as long as 8 months, as it was here, is “wholly unacceptable” and is a “misuse by the local authority of its statutory powers”.

He went on to highlight the recent case law in which local authorities were criticised for the misuse of section 20. Four discrete problems were set out:

  1. The failure of the local authority to obtain informed consent to accommodation from the parents at the outset of proceedings, going against section 20(7) which provides that a local authority cannot use its powers if a parent “objects”.
  2. The form in which the consent of the parents is recorded. Although the local authorities are not required by law to evidence the agreement in writing, a “prudent” local authority should ensure that parental consent is properly recorded in writing.
  3. The arrangements under section 20 are permitted to continue for too long, as focused on in this article.
  4. The apparent reluctance of local authorities to return the children to the parents immediately upon a withdrawal of parental consent. As a result of section 20(8) providing that “any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section”, a local authority which fails to allow a parent to remove a child in circumstances within section 20(8) acts unlawfully.

Guidelines for good future practice

Sir James Munby went on to provide guidance for future good practice in relation to procedure under section 20 to eradicate the shortcomings listed above:

  1. i) Wherever possible the agreement of a parent to the accommodation of their child under section 20 should be properly recorded in writing and evidenced by the parent’s signature.

ii)The written document should be clear and precise as to its terms, drafted in simple and straight-forward language that the particular parent can readily understand.

iii)The written document should spell out, following the language of section 20(8), that the parent can “remove the child” from the local authority accommodation “at any time”.

  1. iv) The written document should not seek to impose any fetters on the exercise of the parent’s right under section 20(8).
  2. v) Where the parent is not fluent in English, the written document should be translated into the parent’s own language and the parent should sign the foreign language text, adding, in the parent’s language, words to the effect that ‘I have read this document and I agree to its terms.’

It is hoped that now that the above issues have been addressed, local authorities will take note and ensure good practice is carried out. Misuse of section 20 is a denial of the fundamental rights of both the parent and child and “must stop”. It is expected that local authorities will follow the good practice set out above from now on, or can be expected to be subject to serious questioning by the court and stringent criticism, with even potential claims against them for damages.

There have been signs of the courts already stepping up the efforts to ensure good practice is carried out to prevent the misuse of section 20. Recently, a West London Family Court local practice direction has been made, providing that all cases involving a “significant” section 20 delay will be listed before a circuit judge.  Judge Rowe sitting at West London has awarded damages for over £3,000 in one case involving a 2 month period under section 20.

It will be interesting to see whether local authorities adapt their methods of practice in the coming months, and especially to see whether there is a general reduction in the time between accommodation under section 20 and the issuing of proceedings.

Please contact us regarding any of the issues in this article or if you would like further advice.

Ben Dos Santos

Paralegal to Jonquil Houghton

 

When you untie the knot, be sure to tie up your finances!

You may be surprised to hear that in 2015, the Supreme Court granted an ex-wife’s appeal, which meant that her application for financial relief from her ex-husband- despite having divorced him over two decades ago-would not be struck out of court (Vince v Wyatt).

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Divorce in dictionary

Background:

Ms Wyatt and Mr Vince were married in 1981. They had one son together and Ms Wyatt also had a daughter from a previous relationship who was treated as a child of the family. They led a ‘New Age Traveller lifestyle’ and lived mainly off of benefits. They separated after two years’ marriage and formerly divorced in 1992. At the time of the couple’s divorce neither party had any significant assets. It was accepted that Mr Vince was not in a position to financially support Ms Wyatt and the two children, who remained living with her.

In the years after the couple’s divorce a stark difference in each of their respective lifestyles can be seen. Ms Wyatt subsisted mainly on her wages from sporadic periods of low-income employment and state benefits. She went on to have two more children with another partner, but never remarried. Whereas, Mr Vince continued his travels and quite remarkably turned his passion for environmentally friendly energy resources into a multi-million pound business, which he set up in 1995, three years after the couple divorced.

In 2011, Ms Wyatt first applied for a financial order against Mr Vince in the form of a lump sum of £1.9 million. At the time of this application Mr Vince had remarried and had another child. Mr Vince argued that her application should be struck out due to the delay in Ms Wyatt bringing the application.

The case came before the Court of Appeal where it was decided her application would be struck out as they felt there were no reasonable grounds for bringing it.

Ms Wyatt then appealed to the Supreme Court.

So what was decided?

The Supreme Court unanimously decided that they could not dismiss an application for financial relief without first considering all the circumstances and statutory factors. This is despite the delay in bringing the application- although they made clear that the reasons for such a delay would be scrutinised.

When the court considers financial provision for a spouse the court considers all of the factors listed in s25 (2) of the Matrimonial Causes Act 1973. Ms Wyatt heavily relied on s25(2)(f) which takes into account any contributions made by each party- including contributions by way of caring for the home and children. This is not limited to contributions made within the marriage. Therefore, there was scope for considering Ms Wyatt’s contribution post-divorce: namely that she was solely responsible for the upbringing of their children.

The judge commented that although Ms Wyatt had ‘formidable difficulties’ in securing any financial provision from her ex-not least due to the amount of time it took her to bring this claim-her reliance on her contribution post-divorce meant she had a ‘modest’ chance of success.

What does this mean?

It remains to be seen whether Ms Wyatt will win a slice of her ex-husband’s wealth that he acquired after their divorce, but the fact that her application is nonetheless being considered raises an important point. It highlights there is no statutory time limit for bringing an application for a financial order after divorce.

With the onset of ‘quickie divorce’ websites-claiming they can offer you a quick, easy and cheap divorce without recourse to lawyers- this case highlights the importance of sorting out your finances properly and reaching an agreement at the time of divorce, even if you do not have any significant assets.

Such an agreement can be enshrined into a consent order. This is a legal document confirming your agreement and can include details of how you intend to divide up your assets upon divorce, arrangements for maintenance and can even dismiss future applications for financial relief. Provided that the agreement reached is fair and reasonable, a judge will then approve it; once approved it will become legally binding. It is advisable to have this drafted by a solicitor, as it is crucial that it reflects accurately what has been agreed.

So when you untie the knot make sure that you tie up any loose ends relating to your finances. Why don’t you speak to one of our specialist divorce solicitors today? They can help you achieve finality for your finances, giving you peace of mind.

By Charley Olive

Paralegal to Douglas Taylor and Emma Hall

Click here to contact us for advice on any of the issues raised in this article.

 

Domestic Abuse – Your legal protection

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DOMESTIC ABUSE – LEGAL PROTECTION

 

WHAT IS DOMESTIC ABUSE?

Domestic abuse is when someone close to you, often your spouse or partner, causes you physical, social, mental, financial or emotional harm. It includes any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality. The violence and abuse can be actual or threatened and can happen once every so often or on a regular basis.

LEGAL PROTECTION

If you want to get legal protection you can apply to the civil court for an injunction order. An injunction order can provide space for you to recover and make decisions about the future. It can prohibit further abuse and can exclude the perpetrator from the home.

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LEGAL OPTIONS AVAILABLE TO YOU

Non-Molestation Order forbids the threat or use of violence and the use of intimidation, harassment or pestering. The court can grant an order prohibiting specific behaviour.

The court must have regard to all circumstances, including:-

  • The need to secure your health, safety and well-being and that of any children you may have.

If there is a genuine need for protection, a non-molestation order will be granted. Non Molestation Orders are usually made for periods of six months or one year, depending on the seriousness of the matter.

An Occupation Order excludes the other party from occupation of the home. They can be obtained where significant harm to you or your children is likely. Both spouses and cohabitants can apply for an occupation order. Orders are usually made for a specified period not exceeding six months and may be extended on one or more occasions for a further specified period not exceeding six months.

Occupation Orders can extend to:-

  • Excluding a certain party from a specified area around the home if necessary
  • A requirement that your partner leave the home
  • Suspension of your partner’s right to occupy the home

Non-Molestation Orders (and, in exceptional cases, Occupation Orders) can be granted by the court urgently on the day the application is issued.

Breaching a Non-Molestation Order is a criminal offence. The police have the power to arrest if the order is breached. If your partner breaches any order they would be in contempt of court, they could be sent to prison.

A Power of Arrest can be attached to all or part of an Occupation Order. If the order is breached and a Power of Arrest is attached to the order, the police are then able to arrest your partner for the breach of the order.

At Creighton and Partners we have solicitors who are able to assist you in obtaining these orders and advise you on these matters.  We offer Legal Aid so contact us if you think you might be eligible.  Or if not we can discuss our rates with you.

WHO CAN HELP WITH DOMESTIC VIOLENCE?

Legal advice

 http://www.creighton.co.uk/

Organisations & Hotlines

http://www.nationaldomesticviolencehelpline.org.uk/

http://www.refuge.org.uk/

http://www.ncdv.org.uk/

 By Amreet Sahota

Paralegal to director Tracy Chester

Wardship – reported case

When might the Court exercise its inherent jurisdiction to make a child a Ward of the Court?

Tony McGovern of Creighton & Partners recently acted for a child in a reported case concerning J, a 12 year old boy, in care proceedings issued by the London Borough of Newham. This is a unique case on its facts which involved the consideration of whether care proceedings were the most appropriate framework going forward to safeguard this particular child’s future.

J is of Polish origin. He lives with his Mother and his Mother’s partner, Mr L. J’s Mother sadly suffers from a terminal illness which has restricted her life expectancy. As a result of her illness, she is not capable of caring for J or meeting his needs. Although the Maternal Grandmother also lives within the family home, she too suffers from health difficulties and therefore Mr L is J’s main carer. For the past few years, J has been estranged from his Father who resides in Poland and shares PR for J.

Care proceedings were initiated further to concerns arising within private law proceedings pursued by Mr L. Mr L sought to obtain PR for J through applying to the Court for a Child Arrangements Order. During these proceedings however there was concern that Mr L was a safeguarding risk to J’s Mother and as a result, the Court made an ICO of its own motion to the London Borough of Newham. Care proceedings followed and the two sets of proceedings were consolidated.

During the care proceedings, both Mr L and J’s father were assessed positively as carers for J. Given J’s estrangement from his Father and his unwillingness to resume contact, the Local Authority’s care plan was for to J to remain at home under a Child Arrangements Order to Mr L supported by a Supervision Order. This was opposed by J’s father who sought for him to be returned to his care. This care plan lacked a level of stability for J however due to the precarious nature of Mr L’s immigration status, as he currently does not have leave to remain in the UK.

Given the uncertainties surrounding J’s future, an application was made on behalf of the Children’s Guardian under the inherent jurisdiction to make J a Ward of the High Court. The matter was brought before HHJ Atkinson to consider whether the current care proceedings should be substituted by wardship proceedings and the Local Authority sought permission to withdraw its s.31 application on the premise that J be made a Ward of the Court.

In her Judgment, HHJ Atkinson accepted the analysis of the Law as put forward by J’s representative, Mr Cregan, and made note of the body of case law suggesting Wardship as an appropriate way forward in situations which are novel due to distinctive features that have arisen or may arise. The Judge identified the following “fundamental uncertainties” surrounding J’s future:

  1. The issues relating to Mr L’s immigration status;
  2. The uncertainty surrounding the Mother’s prognosis and the likelihood of her shortened life expectancy; and
  3. J’s relationship with his Father – the likely loss of J’s Mother during his minority makes the need for this relationship to be re-established even more pressing.

The Judge considered the management of these issues to be beyond the scope of public law proceedings and described the matter as an ” unusual and unique case on the facts such that making a truly final order within any Children Act proceedings will be difficult if not impossible.”

The Judge also recognised the limitations of a CAO as it would effectively allow Mr L to make unilateral decisions regarding J given the Mother’s lack of capacity and the Father’s absence.

In reaching a decision, the Judge considered Wardship to be the most appropriate way of managing J’s circumstances both now and in the future.  Becoming a Ward of the Court would enable J to benefit from the Local Authority’s continued involvement in a supportive but non-interfering way, J would retain his voice through his Guardian, there would be no time restraint on the conclusion of proceedings and emergency situations could be dealt with as and when they arise.

The Judge therefore granted the Guardian’s Wardship application and gave permission to the Local Authority to discharge the Interim Care Order. Whilst the Judge considered that the Wardship may not necessarily continue for the rest of J’s minority, it could continue until there was a reasonable degree of certainty and J’s future is considered to be “safe, secure and settled”.

Read the full Judgment here – http://www.bailii.org/ew/cases/EWFC/OJ/2016/B1.html

Contact Tony McGovern for more information on this case or to instruct him on other cases.

By Hanna Bellis
Paralegal to Tony McGovern

Children in care do better at school than vulnerable children who remain with troubled families

A new research study identifies the key factors that influence how well the children in care do in schools in England and finds children who are fostered make better educational progress than children in need (those living with their families while receiving social work support.)

A study, led jointly by the Rees Centre for Research in Fostering and Education at the University of Oxford and the University of Bristol investigates the relationships between young people’s experiences in the care system and their educational achievements in secondary school. It was found that by the age of 16, children in foster care or kinship care achieved a GCSEs at least six grades higher, on average than children in other forms of care.

When carrying out the investigation a mixed method approach was taken by exploring the relationship between educational outcomes, young people’s care histories and individual characteristics by linking the educational data that had been collected.

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The report, which examined the GCSE results of 640,000 young people in England in 2013 were examined. Around 14,000 of these were deemed to be in ‘need’ but were still living with their birth parents supported by social workers, and their results were not as good as the total of just over 6,000 pupils who were in care. The report also found that young people in care who changed school in Year 10 or 11 on average scored more than five grades less than those who did not.

Children did better at school “once they felt safe and secure”, said Professor David Berridge of Bristol University. The longer that vulnerable children remain in foster care the better they do, the researchers add.

At GCSE, 16-year-olds who had spent at least a year in foster care achieved better grades, equivalent to at least six grades overall, than children in other forms of care. In interviews, foster children told the researchers that escaping abuse, hunger and intimidation – and gaining encouragement, discipline and the sense of being cared about, made the biggest difference.

The researchers concluded that foster care protects the education of children in care, with other key factors being the number of school absences, the timing and number of care placements or school moves, and the type of school attended.

Professor Judy Sebba, director of the Rees Centre, said school moves should be avoided, particularly in the two years leading up to GCSE exams.

Children’s minister Edward Timpson said education coupled with a stable home environment can transform the lives of vulnerable children.

Nusrat Chauhan

Special Guardianship as a new offer of permanency

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Article 8 of the Human Rights Act 1998 provides for the Right to Family Life. All children should have the benefit of this right, whether this is with their birth parents, or if this is not possible, within the wider family or foster care network.

Purpose of a Special Guardianship Order

By way of introduction, Special Guardianship was implemented into the Children Act 1989 on 30th December 2005. This new legal order offers an alternative option to adoption for a secure and permanent home for children under the age of 18 who are unable to live with their birth parents. The primary purpose of a Special Guardianship Order is to enable Special Guardians to exercise parental responsibility for the child. This allows them to make all important decisions in relation to the child’s welfare. It also provides a more natural home environment with less statutory intervention from local authorities for children than long term foster care. However, in contrast to an Adoption Order, Special Guardianship does not result in absolute legal severance from the child’s natural family.

The importance of keeping children within the family network or returning them to it is an underlying policy consideration here. In this respect, Special Guardianship offers a valuable option that runs parallel to the existing framework of adoption, residence orders and long term fostering. In addition, Special Guardianship ensures that local authorities provide access to support services for Special Guardians including financial assistance, to help them facilitate this permanent home.

Uptake of Special Guardianship

The availability of Special Guardianship has been welcomed as an alternative offer of permanency for children unable to return to their birth parents. The number of children leaving the care system via this new legal avenue has increased each year.

In the beginning, questions were raised as to whether Special Guardianship would be used given the existence of adoption.  Both Special Guardianship and adoption exist to obtain permanency. However, the two orders appear to be complimenting one another in practice. Ordinarily, it is very young children that leave the care system through adoption. In contrast, children aged 10 and over are more commonly leaving through Special Guardianship. Furthermore, more children from minority ethnic backgrounds are leaving through this new type of order. In light of this, it can be observed that Special Guardianship fills the perceived gap in permanency for some children that adoption creates.

Special Guardianship has primarily been used by relatives, the largest group being grandparents followed by aunts and uncles who wish to keep the child within the extended family network.

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Special Guardianship has most often been used by children who were looked after immediately before the making of the Special Guardianship Order in kinship foster care or who were already living with the future Special Guardians prior to the order being made.

In contrast, children living with unrelated foster carers are less likely to be the subjects of Special Guardianship Orders. Foster carers are often concerned that they will lose social work support after the two year period when enhanced payments to compensate for loss of the foster carers’ allowances end.  In addition, private applications from carers of children not previously known to children’s services are rare due to lack of general awareness, information and advice about Special Guardianship.

By virtue of the Children Act 1989, local authorities are under a duty to try and place children within the family network first. Special Guardianship is being increasingly identified by local authorities as an option in the early pre-proceedings stage of the permanency planning process, as soon as they have recognised that the child may not be able to return to their birth parents. This means that if this early identification is successful, Special Guardianship has the potential to offer children a permanent home without the need for care proceedings.

Risks of Breakdown of Special Guardianship Placements

As previously discussed, Special Guardianship does not absolutely sever the child’s link with the birth parents in the same way that adoption does. Children often continue to have contact with their natural family. This can lead to an increased risk in disruption as parents may wish to challenge or revoke the order, which is not possible with an Adoption Order.

The rate of Special Guardianship breakdown is higher than that of adoption. There are various factors that more commonly lead to breakdown in Special Guardianship placements:

  • the more placements a child has, the more likely the risk of a subsequent breakdown;
  • the older children are at the time the Special Guardianship Order is made, the greater the risk of disruption;
  • if the child is not placed with the foster carer who was looking after them in the care system, the child’s bond with the carer is often not as strong;
  • finally, if the Special Guardians live far from the local authority responsible for the placement, the level of support provided to them can sometimes be reduced.

Ellie Gee

If you would like advice on making an application for a Special Guardianship Order, please contact us on 0207 976 2233.