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.

doctor

Sarah Corbett of MW Solicitors Clinical Negligence team acted for a woman who has been awarded damages of £5.8 million after St George’s Hospital in Tooting failed to make a timely diagnosis of meningitis. 

Events Surrounding the Claim

Our client, who was pregnant at the time, attended St George’s hospital in Tooting in January 2011 as she was feeling unwell.  She was admitted to the maternity unit but despite clear symptoms of meningitis, including the classic rash the hospital failed to diagnose meningitis in good time.  As a result of the delay in diagnosis she developed severe sepsis causing gangrene.  Her unborn son was stillborn, her legs were amputated below the knee, she had partial amputations of 3 of her fingers, sustained partial hearing loss and had to come to terms with what had happened to her. 

Sarah Corbett, Partner and Clinical Negligence Lawyer in our Guildford office said of the settlement:

“Meningitis can affect anyone and is very serious if not treated quickly.  I am delighted to achieve this £5.8 million settlement for my client but hope that the NHS learns from this error.  It is unacceptable that the hospital failed to diagnose such a well known condition when the classic signs were exhibited.  Had she been treated in time she would not have lost her unborn son, her lower legs, parts of 3 of her fingers or suffered partial hearing loss.  No amount of money can compensate for what my client has gone through but the compensation will be used to provide her with the equipment, care and assistance she needs for the rest of her life as a result of her injuries.” 

We Can Help

At MW, our mission is "To make quality legal services accessible to everyone", including those who have been let down by the medical profession or have suffered clinical negligence.  Our team of dedicated and experienced Medical Negligence Solicitors offer a free initial assessment and can discuss your case to see if you might have a valid claim.

Our dedicated professionals can help you progress your claim and help you get the support you need.  If you think that you have a claim for Medical Negligence and need a Clinical Negligence Lawyer, don't delay, call us on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk 

Minefield

The Government Minimum Energy Efficiency Standards (MEES) comes into force from 1st April 2018 and will add yet more regulation to the minefield which already affects landlords. 

What is a MEES and How Does it Affect Me?


Manjot Dhillon
Manjot Dhillon
Solicitor - Property Disputes

Essentially, the MEES will require all properties rented out in the private sector (bar a few exceptions) to have a minimum energy performance rating of an ‘E’ on an Energy Performance Certificate (EPC). It will affect new tenancy agreements and renewals of tenancies taking place after 1 April 2018, and will affect all existing tenancies after 1 April 2020.

What if My Property does not meet the E Standard?

If a property has an energy performance rating of an ‘F’ or ‘G’, the landlord must carry out energy efficiency improvements before they let the property or renew an existing tenancy arrangement.

The new regulations are additional to the existing requirement that a valid EPC must be provided to a tenant by a landlord, and form part of a wider clampdown on energy wastage as the UK works towards reaching its carbon reduction targets.

Stay Up to Date to Avoid a Fine

Penalties for non-compliance include a fine which is based on the rateable value of the property (up to a maximum of £150,000). It is therefore sensible for current and potential landlords to seek professional legal advice before they consider entering into a new tenancy or a renewal to ensure that they do not fall foul of the new requirements.

We Can Help

At MW Solicitors, our mission is "To make quality legal services accessible to everyone" including Landlords who want to ensure that their tenancy agreements stay up to date with lettings legislation and regulations. 

If you are a Landlord and need help with your tenancy agreements, don't delay, contact us today.  Our experienced and specialist Property Disputes Solicitors are here to help.  Call us today on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk

UK vs US Flags

In a recent Landmark decision, the High Court ruled that UK Citizen, Lauri Love, should not be extradited to the United States of America to face trial for hacking computer systems based in the US.

Laurie Love
Lauri Love

Love is accused, whilst working with others between the periods of October 2012 to October 2013, of hacking into private companies and several US Government agencies including The US Federal Reserve, National Aeronautics and Space Administration (NASA), US Army, US Department of Defence and the Federal Bureau of Investigation (FBI). The US Government alledges that this resulted in millions’ of dollars’ worth of damage.  If Love is found guilty he could face more than 60 years’ imprisonment.

This appeal decision overturned District Judge Tempia’s ruling at Westminster Magistrates’ Court on 16th September 2016 to have Love extradited to the US to stand trial against these allegations.

This appeal was heard by Lord Burnett and Justice Ouseley. The High Court came to the conclusion that that:

  • it would be oppressive to extradite Love due to his physical and mental health condition; and

  • if extradited it would be a breach of the ‘forum bar.’

In light of these arguments it was held to be unnecessary to consider further arguments of Articles 3 and 8 ECHR due to the conclusions drawn relating to the two grounds.

Love suffers with Asperger’s Syndrome, depression, eczema and asthma. The High Court considered his high risk of suicide and serious deterioration of his health upon extradition.

What is The Forum Bar?

The ‘forum bar’ allows a court to prevent extradition of the requested person if the extradition is not in the interests of justice having considered the factors as per section 19B and 83A-E of the Extradition Act 2003. This was introduced by the Home Secretary at the time Theresa May when she intervened and prevented the extradition of Gary McKinnon who was similarly accused of hacking into US government websites, was a high suicide risk and suffered with Asperger Syndrome.

Love’s relevant activity was performed in the United Kingdom, using his computers at home. However, in considering relevant factors it was considered that most of the harm suffered was in the US and that this is a ‘very weighty factor.’

The High Court stated that significant weight should have been placed on the fact that the prosecution could proceed in the UK Courts. The High Court was persuaded by Love’s connection to the UK. He is a British national, studying in the UK, is supported by his parents and has a girlfriend. He has close connection with his family who cares for him and receives medical treatment which he may not receive if extradited. These connections outweigh factors for his extradition.

Love was discharged however, the High Court stated:

“125. We emphasise however that it would not be oppressive to prosecute Mr Love in England for the offences alleged against him. Far from it. If the forum bar is to operate as intended, where it prevents extradition, the other side of the coin is that prosecution in this country rather than impunity should then follow, as Mr Fitzgerald fully accepted. Much of Mr Love’s argument was based on the contention that this is indeed where he should be prosecuted

126. The CPS must now bend its endeavours to his prosecution, with the assistance to be expected from the authorities in the United States, recognising the gravity of the allegations in this case, and the harm done to the victims. As we have pointed out, the CPS did not intervene to say that prosecution in England was inappropriate. If proven, these are serious offences indeed.”

This is a landmark Judgment as it is the first time that the ‘Forum bar’ has been successfully argued. It is very rare for the UK to refuse an extradition request and this will no doubt have a profound impact on similar extradition requests to the US and elsewhere.

We Can Help

At MW, Our Mission, is "To make quality legal services accessible to everyone" including those who are being threatened with Extradition.  Our experienced and specialist Extradition Lawyers can help you identify grounds for a challenge and mount a defence against an Extradition request.

If you need a criminal defence lawyer or need an extradition lawyer, our talented and specialist Crime and Extradition Solicitors are here to help you.  Don't delay call us today on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk.

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