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Posts Tagged ‘family courts’

Surreal: Mr Hitler’s children removed by New Jersey Family Court. Thanks Popehat.

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Background to this post appears here.

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Alas, this is not the beautifully crafted discussion piece I had wanted to post, but I cannot devote as much time to this as I would like, and so I offer it as your starter for ten in its slightly disjointed and unpolished form…

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Firstly, let me explode the myth that the outcome of care applications is inevitable and that therefore care proceedings are purposeless.

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Almost all care applications result in orders of some kind. Most result in permanent or long term removal, many in adoption. Only a very few are withdrawn because the evidential hurdle of threshold cannot be met. In that limited sense applications made are by and large justifiably made (The alternative viewpoint is that almost all applications succeed because the courts are a mere rubber stamp – I don’t subscribe to that view).

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But many applications result in different orders than originally anticipated or sought (supervision orders, residence orders or special guardianship orders) or with less draconian care plans (care order with a placement at home, a plan for eventual rehabilitation, a change in placement type, or identification of more suitable carers, more structured or substantial support package for parents or child, proper financial and support package for kinship carers). These changes in plan and outcome are on one level matters of detail, but it is in matters of detail that long term outcomes for children and families can be radically altered – the chaos theory of family law. Complaint was made at the review session that there is an increasing tendency for courts to micro-manage care planning and that this is inappropriate. In the first place I don’t think that this is an accurate representation of the law or of practice. But really, why shouldn’t care plans be scrutinised? If they are appropriate and properly thought through there will be no problem – detailed scrutiny is necessary where, as is sadly often the case, they are ill thought through or poorly justified. The extent to which courts scrutinise the detail of care planning is in direct correlation with the quality of the care planning, and the confidence of the courts in it. (more…)

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snake

the aptly named rat snake (thanks to Cotinis on flickr)

Andrew Commins, a colleague in chambers, has written an interesting article for Family Law Week on the impact of remarriage on variation applications by the ex spouse. I particularly like the mental image described in the extract from Delaney v Delaney [1991] 2 FLR 457, CA, that the court will deprecate “any notion that a former husband and extant father may slough off the tight skin of familial responsibility and…slither into and lose himself in the greener grass on the other side...” (Delaney, at page 461E).

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Fork tongued husbands be warned…

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The snappily titled and easy to read Children Schools and Families Act 2010 has landed on our virtual desks. Not yet in force owing to the impending election (‘What election?’ I hear you say) the Bill made it through ‘wash-up’ and received Royal Assent only moments before Parliament was dissolved, to gasps of relief all round. Or groans.

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Its a b*tch of a document (that’s local legal jargon) and I’m still digesting it piece by piece in between hearings and nappy changes – but I will be cooking up a summary of it for you. My preliminary observation is that it is convoluted, complicated and will probably benefit only the legal profession who will be instructed to deal with all the applications prompted as we all try to work out what it all means. And in a special election double whammy it contains a whole raft of future changes which will be brought in 18 months down the line – just at the moment that everyone has worked out what the law is. I can tell you that fat cats like me are rubbing our greasy little paws with glee. Or I would be if I didn’t have such a god awful headache from trying to unpick the unsightly mess that is the CSFA 2010.

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To experience the pain yourself first hand you may wish to visit the Office of Public Sector Information where you can view the Act alongside the explanatory notes, and also a helpful article in Family Law Week here (written when the Act was still a twinkle in the Queen’s eye (at Bill stage) but still helpful).

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I’m a bit slow off the mark this week but I do want to report this: Lord Justice Wall has been widely reported as criticising social workers for being “arrogant and enthusiastic removers of children from their parents”. It doesn’t look as if he will be a wallflower of a President, does it?

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In another Times piece about social work ‘gone wrong’, it is reported that social workers tried to remove a child from his parents because of their vegan diet. I can’t really make sense of this report, because it appears to suggest that the parents had their public funding withdrawn on merits grounds, but public funding in care proceedings is not merits tested. I think that the answer is that the parents were pursuing some kind of Judicial Review against the Local Authority, which would be merits tested but they would have been entitled to legal representation as of right in relation to the main proceedings where the removal of their children was in issue.

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Further to my previous post Lord Justice Wall is indeed to be appointed as President of the Family Division, taking over from Mark Potter on a date yet to be confirmed.

POSTSCRIPT: See this extract from Hansard for no explanation at all regarding the delay in the announcement (hat tip to Brick, whose comment on the previous post I have only just noticed)

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Charon QC is right. I have to comment on Jack Straw’s apparent reluctance to appoint Lord Justice Wall as the new President of the Family Division, reported on here by The Times. It is difficult to think of any reason for Mr Straw’s request that the appointment panel reconsider other than Wall LJ’s willingness to speak frankly about the state of the family justice system. Thinking back to Wall LJ’s speech about ‘coming off the bench’ in the latter part of last year one imagines a change of tack would be likely if Wall were to succeed the current President Mark Potter.

Although I have taken some time to post this since the story first broke I can find no fresher information than the Times report linked to above, so I assume there is no further announcement as yet.  Cutting it a bit fine eh?

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