Farm Fields Sun

A daughter claimed an entitlement to a dairy farm owned by her mother and late father.   The basis of her claim was that a promise had been made to her by her late father that the farm would pass to her on his death. As such she relied on this promise to her detriment dedicating almost 30 years of her life to her parents’ farm.  This claim is known as a proprietary estoppel claim.

In order to assess the claim, Justice Birss referred to the well established indicators of a proprietary estoppel claim in Thorner v Major [2009] 1 WLR 776 HL: “a representation or assurance made to the claimant; reliance on it by the claimant; and detriment to the claimant in consequence of his (reasonable) reliance”.

The claimant was able to successfully evidence that many representations or promises were made to her about the future of her inheritance such as being told to deal with the employees as they would in time be working for her, or that you cannot have it now and have it later. Justice Birss was satisfied that such assurances had been made.

In order to show that the claimant had relied on these promises to her detriment, Justice Birss accepted the evidence that she had been paid low wages, worked long hours, hardly had time off, and made a commitment to her parents’ farm as opposed to other farms because of the assurances given to her. Consequently, Justice Birss stated that her proprietary estoppel claim had been made out.

However, before allowing a conclusion to take place, Justice Birss had to deal with some other interesting points in order to finalise this dispute: firstly, whether her mother would be bound to a promise that was made by her husband to his daughter, and secondly whether a reasonable casual offer that was made by her parents and later rejected by the daughter 10 years prior would prevent the claimant from pursuing her claim.

Justice Birss firstly stated that in reference to the case of Fielden v Christie-Miller [2015] EWHC 87 (Ch) one can be bound by another’s promise if they were aware of it, and in this case he thought that the mother knew of the assurances made to her daughter and was therefore bound. With respect to the second point Justice Birss was of the opinion that “it was not put to the claimant that by refusing the offer…[that] she would forfeit that inheritance”, and that the refusal did not entitle the defendant to abandon the assurances provided to the claimant. However, Justice Birss did apply this fact into his calculation of what relief should be rewarded.

The daughter was awarded £1.17 million of an estate valued at £2.5 million. Evidently, a promise that changed her life.

We Can Help

At MW Solicitors, our mission is "To make quality legal services accessible to everyone" including those who wish to challenge a will.  Sarah and Ravandeep are members of our Estate and Trust Disputes Team based at MW Guildford.

If you believe you may have inadvertently made such a promise or wish to rely on a promise of a gift on death our specialist Estate and Trust Dispute Solicitors are here to help you.  Don't delay, call our Team today on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk

Coroner's Court

Clare Evans of MW’s specialist inquest team represents the bereaved family of Robin Richards. The lengthy inquest into Robin’s death concluded on 9th March 2015.


Clare Evans
Clare Evans
Solicitor - Civil Litigation

Robin’s death highlights the lack of provision in the community for those diagnosed with Asperger’s Syndrome. The ongoing concern gave rise to the Coroner’s decision on 9th March 2015 to prepare a ‘Report to Prevent Future Deaths’, which will be sent to the Department of Health to respond to.

The Coroner will also send a report to Somerset Partnership NHS Foundation Trust arising out of the concerns highlighted at this inquest.

The jury at Somerset Coroner’s Court found that the following factors contributed to Robin’s death:

  • Communication
  • Training
  • Information-sharing
  • Discharge planning
  • Care planning
  • Risk assessment

Robin died on 3rd July 2015, aged 33, further to hanging himself from a staircase at Highbridge Court in Somerset, on 29th June 2015. Highbridge Court is a private Care Home run by Tracscare (now re-branded ‘Accomplish’), which at the time, advertised itself as a specialised forensic Mental Health service.

Robin was transferred to Highbridge Court on 15th June 2015, followed a prolonged in-patient stay - initially detained under the Mental Health Act before becoming a voluntary in-patient - on a psychiatric ward at Wellsprings Hospital, Taunton.

It is well-documented that the transition from in-patient care to the community is a time of high-risk of suicidality, particularly in the first two weeks after hospital discharge.

In spite of this, when Robin was transferred to Highbridge Court, independent expert evidence confirmed the view Robin’s discharge was not adequately planned for, and staff at Highbridge Court had not been informed by staff of Somerset Partnership NHS Foundation Trust, of the potential risk of harm from Robin, to himself.

The incident on 29th June followed a 2 week period in which Robin regularly expressed suicidal thoughts, and had started to act upon his thoughts by harming himself, including walking in front of moving traffic.

The inquest heard evidence of

  • failings in risk assessment and management;
  • Robin’s family being left out of key discussions and meetings around his care, discharge and risk management;
  • Highbridge Court failing to communicate the full breadth of Robin’s self-harming behaviours to the family or the Trust’s Community Mental Health and Crisis teams;
  • lack of training of care home staff regarding Asperger’s and what to do if someone was found hanging

Details of the Preventing Future Deaths Reports to the Department of Health and Somerset Partnership NHS Foundation Trust are eagerly awaited. The family hope that lessons will be learned from Robin’s tragic death, so that others with similar presentations will not have to suffer the same fate.

This inquest is timely given the recent Guardian article which reveals fundamental shortcomings in mental health care provision, which puts lives at risk. For example, failures in training, flawed processes and errors in judgement (link to article below).

Further, it is understood there are ongoing concerns in relation to other Tracscare Homes in England and Wales, linking into the broader national concern as to the increasing use of private care homes for the purpose of mental health care provision. It is of note that under the Human Rights Act, private care homes can be ‘public authorities’ and, therefore, obliged to comply with the European Convention on Human Rights.

We Can Help

At MW Our Mission is "to make quality legal services accessible to everyone", including those who have lost loved ones whilst in care.  Our experienced and expert Lawyers will represent you at every step of the way.  From Inquest to prosecution and if applicable, in a claim for compensation.  We will be on hand to ensure that you get the access to Justice that you deserve.

If you or your family have suffered an accident at work and would like to speak to one of our expert injury solicitors, call us today on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk.

Media Coverage

Father and Son

In order to make effective gifts on death, the best way to do so is to make a Will, preferably with the advice of a solicitor. 


Sarah Arnold
Sarah Arnold
Solicitor - Estate & Trust Disputes Specialist


However, there are instances when a proprietary estoppel scenario can arise based on the fact that you made a promise to someone. The person to whom a promise has been made would need to prove that a promise or an assurance was made to them, which was relied upon by them, and as a result of this they suffered a detriment.

James v James

One such case where this line of argument was pursued was in the case of James v James and others 2018 EWHC 43(Ch). The case arose because the son of the deceased, who was excluded from his father’s Will, was claiming that his father had promised him land. The Judge found that even though in the past his father had discussed making his Will in favour of his son, this was not the same as promising to do so.

A further interesting point that was made by the Judge was that even if a promise had been proven (which he did not believe was evidenced), then as the son was being paid proper wages, he failed to evidence the reliance and detriment on such a promise. 

This attempt at proving an entitlement to land after death based upon a promise failed.  However, there are plenty of cases in which a promise is evident and the person relying on it has suffered a significant detriment i.e. declining paid work in reliance on the promise, and these cases can and do succeed.

Davies v Davies

In the case of Davies v Davies and Others [2015] EWHC 1384 (Ch) the son of a farmer successfully brought a proprietary estoppel claim as he was able to prove that oral promises were made, were relied upon and as such he did not pursue other potential careers paths leading to his detriment in investing all his time and money on his father’s farm. The Court awarded him the whole farm, excluding a Bungalow, as opposed to a fifth of it which was what the Will had dictated.  

We Can Help

At MW Solicitors, our mission is "To make quality legal services accessible to everyone" including those who wish to challenge a will.

Sarah and Ravandeep are members of our Estate and Trust Disputes Team based at MW Guildford. If you believe you may have inadvertently made such a promise or wish to rely on a promise of a gift on death our specialist Estate and Trust Dispute Solicitors are here to help you.  Don't delay, call our Team today on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk 

Family Law

I am a Family and Childcare Solicitor based in McMillan William’s Bognor Regis office and I also service our Brighton office along with other MW colleagues from our other offices along the South Coast.


Lisa Ursell
Lisa Ursell
Solicitor - Family & Child Law

I am asked frequently by parents going through family proceedings when and how a child can have his/her own solicitor and speak for himself/herself in court?

The Welfare Principle

Every decision that the Court makes in family proceedings is based upon a principle enshrined in the The Children Act 1989 called the welfare principle which states:

“… the child’s welfare shall be the Court’s paramount consideration”.

There is also the principle that “..any delay in determining a question about a child is likely to prejudice the welfare of the child”.  The court attempts to work to tight timescales especially in care proceedings where there is a 26 week limit.  However, in family proceedings where disputes between parents regarding who the children should live with, or access arrangements, there is no fixed timescale.

A court will only make an Order relating to a child if it is better for the child than not making an Order at all.  The legislation supports the general principle that it is always better for families and children if the parents can come to an agreement instead of having to involve the Court to make a decision.

The Welfare Checklist

The Court considers and weighs up many factors when reaching a decision as to what Order to make.  This is referred to by the lawyers and the court as the, “Welfare Checklist”.  There are 7 factors which are taken into consideration:

  • the wishes and feelings of the child (in light of his/her age and understanding)
  • his/her physical, emotional and educational needs
  • the effect on the child of a change in his circumstances
  • his/her age, sex, background and any special characteristics which are relevant
  • any harm he/she has suffered or is at risk of suffering in the future
  • how capable each of the parents are in meeting the child's needs
  • the range of powers the court has available to make the best decision for the child

A frequent misconception of parents going through stressful and worrying court proceedings is that if ‘Johnnie’ or’ Jane’ says what they want to happen then this will surely be what the Judge will listen to and the Court must arrive at this decision? 

However, the Court has to balance many factors within the welfare checklist and the child’s wishes and feeling are just one factor in the complicated weighing up process which the Judge has to carry out.  The older the child, the greater the weight is attached to what they say they would like to happen, but the Judge will make a decision based upon all of the welfare checklist factors and it is that child’s overall welfare which takes priority.

Public Law Proceedings and Guardians

Family proceedings may involve disputes between the state and parents called public law proceedings, (where a local authority and children’s services are involved e.g. care proceedings), and disputes between parents and/or other family members for example grandparents, called private law proceedings.

In public law proceedings the child is made an automatic party to the care proceedings and the court appoints a guardian for the child.  The guardian is independent of the local authority and is a neutral party on behalf of the child.  The guardian will be from an independent organisation called CAFCASS, (Children and Family Court Advisory and Support Service).  Following on from their appointment the guardian appoints a children panel solicitor to be the solicitor for the child.  Should there be a delay in appointing a guardian then the court may appoint a solicitor for the child direct.  That child’s interests and welfare are then put before the court within the care proceedings by the child’s solicitor.

In care cases involving an older child often the situation can arise whereby the guardian believes that it would be best for the child/young person for one course of action to happen, but when discussing matters with that child or young person, that child strongly believes that the outcome suggested by the guardian is something which they do not agree with nor could they go along with. For example the child is in an interim foster care placement and the child wishes to return to one of his parents.  Due to risks posed to the child the guardian would not be supporting this.

In these cases the child’s solicitor has to carry out an assessment of that child/young person. The child’s solicitor will consider the age of the child and how much they understand the concerns and worries that the local authority has about their care from the parent(s) which resulted in the court application, and if they understand the consequences of the instructions they wish to give about what should happen to them in the future?  If the child’s solicitor assesses they can give separate instructions then an order may be granted by the Judge for their specific views to be argued in court through their own solicitor.  The guardian will still put forward separately what he/she considers is in that child’s best interests.

Private Law Proceedings

In private law proceedings which concerns a dispute either between parents and/or other extended family members, the general rule is that the child is not a separate party to the proceedings.  The court will ask a member of CAFCASS to prepare what is called a section 7 welfare report.  The report is drawn up after discussing matters with the parents and meeting the child(ren) concerned to ascertain their wishes and feelings. 

However, in a minority of difficult cases the court may decide that the child does need separate representation from the parent(s)/family members.  In such cases the court will appoint a guardian to represent a child and take over the child’s case. 

These cases are rare and only occur if one of the following is present:

  • if the S7 report author recommends the child should be a party in their own right
  • if there is an ‘intractable’ dispute over where the child should live or how much time they should spend with the other or if all contact has stopped altogether and there is implacable hostility which may be harming the child as a result
  • an older child is opposed to a course of action being put forward by the S7 report author
  • complex medical or health issues
  • an international element possibly involving child abduction
  • serious allegations of physical
  • sexual or other abuse or domestic violence allegations

If a child is made a party to private law proceedings and they have their own guardian, a solicitor for the child will also be appointed to be the advocate in court. 

A more mature child/young person can seek to instruct his/her own solicitor if they consider themselves to be affected by a family dispute.   Upon meeting that child/young person, a children panel solicitor would need to carry out the exercise of assessing if they are capable of giving separate instructions and whether they understand the court process and the implications and consequences of any instructions they give to the solicitor and what they wish to happen.  An assessment of their emotional intelligence and maturity would be carried out by the solicitor instructed.  Legal Aid may be available for a child but in private law cases a full merits and means assessment would have to be made to the Legal Aid Agency including why the child/young person requires legal representation and confirming that they have no financial means to pay for the legal advice and representation themselves.

Can a child or young person give evidence?

There was a general presumption that only in an exceptional case should a child be called to give evidence in court.

In a Supreme Court case from 2010 called Re: W the circumstances surrounding when and how a child should give evidence were looked at closely and guidelines were issued which are followed by the courts today.  There needs to remain a balance between protecting the child and the right that any child has to a family life, as well as the rights of the parent(s) to a family life and to a fair trial under their European Convention Rights.

At the heart of any decision,  the court will look at the advantages in that child giving evidence to get to the truth of what has happened and achieving the best possible evidence before the court as against the possible damage or harm to that child’s welfare from the act of giving evidence.

There are now practical guidelines, safeguards and protections in place which must be followed by the Court and the lawyers before any child gives evidence.  In my experience it is still only in the most exceptional cases that a child/young person has to face the ordeal of attending court and giving evidence.

We Can Help

 

At MW, our mission is "To make quality legal services accessible to everyone", especially children..  Our expert Family Solicitors have years of experience dealing with all aspects of Family Law

If you would like to talk in confidence to one of our team of specialist family solicitors call us today on 0203 551 8500 or email us at enquiries@mwsolicitors.co.uk

 

 

 

The Supreme Court has ruled that the Metropolitan Police failed to effectively investigate allegations made against John Worboys, a serial sexual predator. As a consequence, two of his victim’s have been collectively awarded £41,250 in compensation.


Fleur Hallett
Fleur Hallett
Solicitor - Civil Litigation

The main issue in this case was the extent to which Article 3 imposes a positive obligation on the police to effectively investigate allegations made against other individuals.

The two victims brought a claim against the Commissioner of Police of the Metropolis under the Human Rights Act 1998. They argued that the failure to identify and arrest Worboys breached their rights under Article 3 of the European Convention on Human Rights, which states that

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment'.

This judgment has significantly widened the scope of police liability and paved the way for other victims to bring claims against the police should they fail to carry out an adequate investigation.

Commenting following the judgment, the Metropolitan police have recognised the implications this case will have on how they prioritise and resource their investigations. Coupled with the potential for future claims, it is not unreasonable to draw the inference that they vigorously defended the claim for fear of the financial repercussions; they appealed to both the Court of Appeal and then Supreme Court, following the original judgment in the Claimant’s favour in February 2014.

You can read the full judgment here

We Can Help

McMillan Williams is a leading specialist in bringing civil actions against the Police and protecting the rights and freedoms of ordinary citizens. We can represent you in pursuing a complaint, disciplinary proceedings or a civil claim against the Police for compensation.

If you have been a victim of crime and feel the police failed to sufficiently investigate or if you wish to speak with one of our solicitors who specialise in Actions Against the Police don't delay, all us today on 0203 551 8500 or email us at enquiries@mwsolicitors.co.uk.

We urge you to do this as soon as possible as there is a one year time limit ( from the date of the incident) in which to bring a Human Rights Act claim.

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