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News Round-Up (w/e 9 September 2013)

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Essential links and news from the week in family law. This week the family justice system breaches Article 8, the President on anonymity and the Internet, and an update on legal aid changes.

  • Supreme Court to rule on inherent jurisdiction today
    Judgment in the case of A (Children) will be handed down this morning. The issue at stake is put succinctly by the court as follows

    "Can the wardship jurisdiction (or inherent jurisdiction) of the Family Division of the High Court ever be exercised in respect of an infant child who has never been physically present in England and Wales?"

    More on the facts of the case can be found on the Supreme Court website. You can also watch the judgment being handed down on the Supreme Court Live channel - it starts at 2.30. The full text of the judgment will be published on the Hub later.

    The President on transparency, anonymity and the Internet
    Lawyers must not 'simply throw up our hands in despair and moan that the internet is uncontrollable' nor 'simply abandon basic legal principles' when it comes to anonymity in children cases. These comments by the President arose from the case of J, a child who had been removed by social workers and whose father had posted pictures of them and the child, together with abusive comments, on Facebook.

    Identifying the central issue as being whether to extend the child's anonymity he dismissed the local authority's application for a contra mundum order that would have retained anonymity for the social workers involved. In his view the risk of the identification of the child from that information was merely 'fanciful' and that to prolong anonymity would 'confer indirectly the very anonymity which the court did not intend'. He then explained his reasoning for only preserving the anonymity of the baby [81]

    "First, the reality is that although anyone can identify a baby by its name it is almost impossible, unless you are the parent, to distinguish between photographs of children of that age who have the same general appearance. Second, the reality, at least with current domestic technology where searches of the internet are by word (name) and not image, is that unless you have a name, or a mass of other identifying details, it is going to be very difficult, if not impossible, to locate anonymous postings about an individual. Third, in a case such as this, although there may be a powerful argument for asserting that the baby who features in a filmed episode should not be named, there are at least as powerful arguments for asserting that the publication on the internet of film such as I am concerned with here, commenting on the operation of the care system and conveying a no doubt powerful and disturbing message, should not be prevented merely because it includes images of the baby.

    The full judgment, which provides an useful overview of the current law, can be read on the Family Law Hub here.

    Article 8 rights breached by family justice system
    Lord Justice McFarlane has ruled that the delays and decisions resulting in a father being denied contact through the mother's hostility was a breach of his and his daughter's Article 8 rights. After nearly 10 years of litigation and 82 court orders a Circuit Judge had made no order for direct contact which the father appealed.

    Allowing the father's appeal and ordering a full rehearing he states that his findings were at [52]

    "based in part upon the bald facts [.....]: this is an unimpeachable father, who has been prevented from having effective contact with a daughter who has enjoyed seeing him, in circumstances where the child's mother and primary carer has been held to be implacably opposed to that contact. In ECHR terms, there can be no dispute that the issues in this case engaged the Art 8 right to family life of M and each of her parents. No facts have been established to support a finding that, in terms of Art 8(2), it was 'necessary' or proportionate to refuse contact in order to protect the 'health' or 'the rights and freedoms' of others."

    and that [65]

    "collectively the combined interventions of the court over this very extended period have, from a procedural perspective, failed to afford due consideration to the Art 8 rights of M and her father to a timely and effective process in circumstances where there is no overt justification for refusing contact other than the intractable and unjustified hostility of the mother."

    He also requested that a small bundle of relevant papers be sent to the President and Sir David Norgrove as Chairman of the Family Justice Board, in 'the hope that lessons may be learned for the Family Justice System as a whole as a result of what has transpired in this case.'

    You can read the full judgment on BAILII here. It will be published in full on the Family Law Hub later this week.

    MoJ presses on with legal aid proposals
    The Ministry of Justice is to push through proposals for a civil legal aid residency test and changes to expert fees following publication of its response to the Transforming Legal Aid consultation. While most attention has been focussed on the apparent U-turn on criminal legal aid Chris Grayling, the Justice Secretary, made it clear that other measures must proceed, though the original residency test has been slightly amended.

    He also announced that his department will put forward plans later this Autumn for assessing eligibility once the universal credit has been rolled out and on how to adapt the fees structure once the single family court is in operation in April next year.

    The response document can be downloaded from the justice.gov.uk site here (opens in pdf).


Published: 09/09/2013

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