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Family: Resources, Articles and Updates

SAHCA is the only solicitor association which represents higher court advocates. We strive to represent solicitors advocates’ views and deliver relevant training. Many family solicitors undertake their own advocacy, and because of the audience rights we have in the family courts, some may have chosen not to apply for Higher Audience Rights Civil.  However, SAHCA values our family members and you do not have to hold Higher Audience Rights to join. We continue to strive to represent family solicitors with the issues we face in our practice area. Members receive regular newsletters with relevant content and articles. These can include articles about family law matters, and family law case law reviews (see links below).  SAHCA is an invaluable resource for keeping up to date with advocacy related issues. We lobby on your behalf about issues which are relevant to you and provide discounted advocacy training, including in children and family law.

It is an exciting times in children and family law. Our President, Sir Andrew McFarlane, detailed in his View from the President’s Chambers: May 2019, ( https://www.judiciary.uk/wp-content/uploads/2019/01/View-from-the-Presidents-Chambers-May-2019.pdf ) that he is driving a campaign to improve family practitioners’ well-being. This has been advanced by His Honour Judge Tolson QC in his draft guidance “Well-being in the Central Family Court”. All of this is positive news for family practitioners who for years have burned the midnight oil preparing for cases and being bombarded by emails at anti-social hours.  The initiative aims to stamp out this constant pressure for family solicitors.  Also, the court reform program is now well underway and  is due to be completed in 2020. This is a £1 billion scheme to achieve, amongst other things, paperless courts with paperless bundles. Again another improvement which should streamline and enhance our working practices. These are the types of issues which we advance on behalf our members.  You can find regular updates on our initiatives on this page.

Legal Updates and Relevant Cases

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Deborah Piccos, chair of SAHCA, has recently been involved in the interesting case of Re J, G And H (Children: Supervision Orders) [2021] EWHC 884 (Fam) (29 March 2021). This case was heard in the High Court over 11 days in March 2021, where Deborah represented a competent child, who was separately represented from the children’s guardian in the case. This case involved complex care proceedings relating to three children, where the father attacked the mother many years previously and she had suffered significant injuries.  The Local Authority sought removal of the children into foster care as they were concerned that the mother could not protect the children and herself from any possible future risk from the father. Mr Justice Poole made reference in his Judgment to the  new Public Law Working Group, Best Practice Guidance: The Application and Case Management, March 2021. This guidance states that there should be “exceptional reasons” for a court to make a care order on the basis of a plan for the child or children to remain in the care of their parents or carers. The Judge concluded that the children’s welfare would be best served by remaining with their mother. The guardian sought care orders for two of the children, whilst they remain at home in their mother’s care, but following consideration of the Guidance the Judge decided that the three children should remain with their mother under 12 month Supervision Orders.

A reminder from the Family Division to feedback the outcome of cases to experts.

As part of the implementation of the recommendations made by President’s working group on experts (it was recorded and will be available on the FCJ website in due course). It was aimed at experts who are thinking about taking on legal work, but was also attended be a number of established expert witnesses. One thing that emerged quite strongly was that expert witnesses want to know what was decided in the case; and how their evidence influenced the outcome, as valuable feedback, and to help them learn and improve. However, they reported that they only rarely hear from the solicitor who instructed them (or anyone else) regarding how the case ended.

As we know, the FPR 2010 r25.19 says we must tell experts the outcome of a case:

(1) Within 10 business days after the final hearing, the party who instructed the expert or, in the case of a single joint expert, the party who was responsible for instructing the expert, must inform the expert in writing about the court’s determination and the use made by the court of the expert’s evidence.

(2) Unless the court directs otherwise, the party who instructed the expert or, in the case of the single joint expert, the party who was responsible for instructing the expert, must send to the expert a copy of the court’s final order, any transcript or written record of the court’s decision, and its reasons for reaching its decision, within 10 business days from the date when the party received the order and any such transcript or record.

 A suggestion is that we start to put a direction in the final orders to ensure it happens which in turn will hopefully entice and keep more expert witnesses undertaking work in the family courts.

On 22nd September 2020 the Legal Aid Agency published an updated version of the expert guidance. The link can be found here:

https://www.gov.uk/guidance/expert-witnesses-in-legal-aid-cases

Covid 19 Guidance for Family Courts

Re P is the first reported decision by the President about adjourning final hearings during the Covid 19 pandemic. It is essential reading for all family law practitioners.

https://www.lawgazette.co.uk/news/mcfarlane-adjourns-family-proceedings-as-unsuitable-to-be-heard-remotely/5103978.article?utm_source=gazette_newsletter&utm_medium=email&utm_campaign=Society’s+bailout+wishlist+|+Remote+family+proceedings+‘unsuitable’+|+Colleague+communication_04/23/2020 

Case: https://www.bailii.org/ew/cases/EWFC/HCJ/2020/32.html

The President of the Family Division has issued this (hyperlink for the attached document)  guidance re hearing during the Covid 19 outbreak.

Presidents_Guidance_Covid 19 copy

Covid-19 Private and Public Law Interim procedures for your information as agreed by the Designated Family Judges at Central Family Court, East London Family Court and West Family Court.

Pan London document 20 03 20

Her Honour Judge Sybil Thomas, a senior circuit judge, for Birmingham’s family court issues Well Being Protocol:

wellbeing-protocol

The Family Justice Observatory has published a literature review and a case-law review looking at the removal of babies at birth. Copies of the documents are attached. The Family Justice Observatory has said

‘In light of the issues raised and the limited national guidance or training available for professionals, the Nuffield FJO will develop the first national, evidence-informed good practice guidelines for professionals involved in the process of removing newborn babies from their mother at birth for child protection reasons..

The guidelines will be developed over the next 18 months by researchers at Lancaster University and the Rees Centre at the University of Oxford, led by Professor Karen Broadhurst. The team will be working closely with health and social work professionals and birth parents.

The guidelines will then be piloted in eight local authorities and health trusts during a six-month period and used in at least 30 child protection cases involving newborn babies. The ambition is for the guidelines to be adopted and developed into guidance by local authorities, health authorities, the police and the judiciary throughout England and Wales, and for local authorities and the judiciary to understand why so many infants are being taken into care and to explore measures to prevent this.’

Case law review_Born into care_December 2019

Literature review_Born into Care_Dec 2019

Executive summary_Born into care literature review_December 2019

The President of the Family Division has issued guidance on reporting in the family court  https://www.judiciary.uk/announcements/president-of-the-family-division-guidance-as-to-reporting-in-the-family-courts/

https://www.familylaw.co.uk/news_and_comment/scotland-becomes-first-uk-country-to-ban-smacking

Articles

Committee Member and family practitioner Philip Goodall considers Pregnancy and Equal Treatment in this article:

 

John Tughan QC of 4 Paper Buildings Chambers publishes a helpful update in Family Law Week on 2nd November 2020, of the most important decisions of the courts in public children law cases during the pandemic.

Family Law Week_ Children_ Public Law Update (October)

Psychological Assessments: a brief guide to choosing a psychological expert : Sophie Crampton, barrister of 4 Brick Court, offers guidance on when to instruct a psychologist and how to choose a suitable one for your case.

Psychological Assessments

The Separate Representation of Children: Shiva Ancliffe reviews the law relating to the determination of whether a child should be separately represented in proceedings

Part 1 and Part 2

A short history of children’s evidence by Fiona Donnelly

Transgender man is to remain registered as child’s mother

CAFCASS are not required to assess or do work with a child not subject to the proceedings

Termination of the appointment of a Children’s Guardian

Unreasonable judicial pressure on the parties 

Separate representation of children

The Procedure for Children Meeting the Judge in Family Cases

Advocates and their Duties to the Court


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