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Posts Tagged ‘legal’

The judgment in B (Children) [2008] UKHL 35, handed down today is of significant importance in care proceedings. The leading judgment by Baroness Hale of Richmond is compelling reading, as is the secondary judgment of Lord Hoffmann.

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Based on my first read-through of the judgment this evening the decision appears to amount to this:

  • the correct standard of proof in care proceedings is unequivocally the civil standard i.e. the balance of probabilities;
  • the ‘cogency rule’ (that the more serious the allegation the more cogent the evidence needs to be) should be laid to rest;
  • a finding of future harm cannot be founded upon a mere ‘real possibility’ of past harm – if there is insufficient evidence of past harm to satisfy the standard of proof the allegation remains no more than an unproven allegation and children should not be removed from their families on the basis of unproven allegations; .

I was struck particularly by Baroness Hale’s remarks about the distinctive roles of the court and local authorities (see pas 57-60 in particular): it is for local authorities to act on suspicions of harm by investigating and where appropriate initiating proceedings, but it is for the court to adjudicate upon the evidence and consider the child’s welfare based upon the conclusions reached about that evidence.

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I will want to read this judgment more thoroughly – there is a lot in it – but for now suffice to say that although it is lengthy it is also impressive, and has a good degree of clarity bearing in mind the difficult subject matter. I have linked above to the judgment on Family Law Week – no doubt a full summary of the case will appear there before I can hope to do it proper justice.

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Update: Laws of Love has helpfully provided a more detailed summary than I have found time to do: here.

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Wow. Rock on Mr Justice Coleridge! Coleridge J opened the Resolution Conference last week with a speech that is considerably less diplomatic than many a judicial utterance. He says early on in the speech: “I have not discussed this talk with the President let alone shown him a copy in advance. (I did not want to do so for fear that he might ask me to tone it down a bit). And just at the moment I am not in the mood for toning things down”. Perhaps if he had run it past the Pres it might never have seen the light of day, but I’m glad that it did.

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Accordingly, the text of Coleridge J’s speech to Resolution last week can be found here in full: resolution-press080404. If you want to read some commentary you can visit the Laws of Love blog which beat me to it. All I need say is that everything Coleridge says rings true with my experience, is entirely sensible and ought to be (IS) self evident, particularly the short-sightedness of underfunding the family justice system and treating it like a poor relation.

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BLAAAAAAAAWGS

Interesting entry on the nearly legal blog from another legal blogger (please don’t say blawger – its too awful a title to bear) about (amongst other things) the surprising range of interest a legal blog can generate.

 and apparently in someone’s world I’m no 28 of the top family law blogs. that’s a rather nice surprise but its making me feel all competitive….I WANT 27th place!

However, I’m afraid that I’m not going to be pushing myself up the rankings this week since I’m in the middle of a trial in a care case (yes, checking on the blog is what I do to unwind in between wolfing down dinner and going back to preparing my cross exam for tomorrow) and I can’t give much thought to content at the mo…Getting 27th place will have to wait until I’ve got a plan for my closing speech…

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Collaborative Law

This collaborative law initiative seems to be catching on, and I can certainly see why, if it does what it says on the tin. I’ve often met clients who have been disappointed with what mediation can offer them (I meet them at court once mediation has failed and they have fallen back on the court process). One of the reasons often cited by clients for the failure of mediation is that one or other of the parties has felt uncomfortable reaching an agreement when they haven’t had any legal advice (the other being that the other party has not entered into mediation in good faith and has tried to use it to bully the other into something unfair). This new approach seems to combine the best of mediation with the best of law. And leave out the adversarial part. Excellent news.

Has anyone tried this? Has it been positive?

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Slough takes on giants

Slough has just successfully judicially reviewed the government in relation to the business growth money scheme (the government had wrongly refused to pay out extra funds to slough after it facilitated the growth of two major new businesses in Slough (Tesco Extra in Slough and Royal Mail sorting office in Colnbrook). And goodness only knows we ought to get SOMETHING positive as recompense for being forced to shop in the largest tescos in the solar system.

Also, much to my delight, the Competition Commission has ordered that Tesco downs tools on construction on its old site down the road from the gargantuan Tescos, whilst it conducts an inquiry. The complaint is that Tesco is hoarding the land and deliberately building units so small on it that the occupants will not effectively be able to compete with Super-Tesco. No? Tesco behaving in such a way? Unthinkable. Pah! 

And to complete the hat trick Slough is also still battling the Government about its population statistics, complaining that it has been given insufficient funding to cope with the infux of immigrants, particularly Poles who are arriving in Slough.

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