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News


22/08/14

36 Family’s Gillian Temple–Bone successfully appeals decision in the Court of Appeal in Re W (Children) acting for the Local Authority

RE W (CHILDREN) (2014)

CA (Civ Div) (Jackson LJ, McFarlane LJ, Kitchin LJ) 19/08/2014

FAMILY LAW

CARE PROCEEDINGS : CHILD PROTECTION : CHILDREN’S WELFARE : PARENTS : SUPERVISION ORDERS : EMOTIONAL NEEDS : EMOTIONAL HARM

The local authority’s application for care orders was remitted for rehearing where a judge had failed to grapple with evidence that three young children needed emotional care and support that their father was unlikely to be able to provide on his own.

The appellant local authority appealed against a decision refusing to make care orders in respect of three young children and instead making supervision orders for one year. 

The proceedings concerned three young children who all had particular difficulties. The eldest, a boy aged 12, was highly vulnerable and had emotional difficulties. The second, a girl aged 8, suffered from poor growth and developmental difficulties and had a statement of special educational needs. The youngest, a boy aged 4, suffered from global developmental delay. The parents had their own difficulties, the father (F) had alcohol problems and the mother (M) suffered from mental ill–health. The children had been exposed to their volatile relationship. M had left the family home leading to further conflict and uncertainty. She then returned, only to leave again. A child protection plan had been formulated and it was agreed that the threshold criteria were met because the children were suffering significant emotional harm. At the time of the hearing of the local authority’s application for care orders and/or placement of the two younger children for adoption, F was providing for the physical needs of the children with monitoring and support from the local authority. However, the evidence of the local authority’s assessment, an independent social worker, the case worker and the guardian was that F’s ability as a parent was such that he did not recognise and could not meet the emotional needs of the children. The judge refused to make placement orders and there was no appeal against that decision. He refused to make care orders and instead made supervision orders. 

HELD: The evidence of the social work professionals was clear that F could not meet the children’s emotional needs. Their needs were complex; and complex solutions were necessary for them to have a positive experience. The evidence was that F did not understand their needs; his parenting was inconsistent; the older boy was treated as older than he was and the younger children were treated as younger; he failed to deal with unwanted and unkind behaviour between the children; he did not set appropriate boundaries. The children had lost their mother, and F had his own vulnerabilities and lacked insight into the deficit in his care of the children. The judge nevertheless decided that the children should remain with F. The judge appeared to have focussed on the unsettling effect of M’s return to the family home and to have thought that that problem had been neutralised. There was a mismatch between the wealth of evidence about the difficulties of caring for the children’s emotional needs and the judge’s appreciation of it. Perhaps the judge had not received the assistance from counsel that the appeal court had received. The judge did not have to accept the professional evidence, but if he did not he had to grapple with it and explain his reasons. The outcome was unsatisfactory. The object of the exercise had been to develop a bespoke plan for each of the three children. Unfortunately the court had not fully engaged in that process. The decision was set aside and the case remitted to another judge. The supervision orders would continue as interim orders. Appeal allowed

 

Counsel: 

For the appellant: Gillian Temple–Bone 

For the father: Eilidh Gardner 

For the guardian: Maggie Jones 

 

Solicitors: 

For the appellant: In–house solicitor 

For the father: Burgess & Co 

For the guardian: Bramwell Browne Singer

 

For full details of the case, please click here.

 

19/08/14

Adrienne Lucking QC and Felicity Gerry QC speak to Chambers’ Women in Law: “Female Silks: Career milestones, challenges and tips for the next generation”

To read the full article please click here.

12/08/14

36 Consumer release follow up slides and annotations from TSI 2014 in Harrogate

Please download a copy of the slides and accompanying notes below:

CPUT UNFAIR TRADING

Slides

Accompanying Notes

 

POWERS CRAZY

Slides

Accompanying Notes

 

05/08/14

36 Crime’s William Harbage QC and Mary Prior successfully prosecute Hinckley murderer James Burton

The case was notable for the use of Body Camera video footage taken by police officers attending the scene whilst the incident was still in progress and afterwards during Burton’s arrest and detention. 

For full details, see link to the full case below:

http://www.leicestermercury.co.uk/Remorseless-killer-James-Burton-given-life/story-22046329-detail/story.html

01/08/14

Holiday (Pay) from Hell – Richard O’Dair, Head of 36 Employment

Holiday pay may be a boon for employees but for employers, statutory holiday pay is increasingly problematic. The problem is not simply that employees can accumulate holiday pay whilst off sick. Nor even that if they fall ill on holiday they can switch to sick leave. The far more telling blows are the decisions of the ECJ to the effect that holiday pay must include not only basic pay but also an element to reflect other parts of the package which reward work done (as opposed to expenses payments) such as commission and, possibly, overtime.

The difficulties of calculation may be formidable. If earnings from commission are variable, the same is inevitably true of commission based holiday pay. A more potent problem is that it is possible for claims to extend backwards over time for many years. This is because, provided an employee brings a claim for underpayment of holiday pay within 3 months of the last day of underpayment, he can also claim for any previous days of underpayments since they count as being “part of a series of deductions” for the purposes of s.27 of the Employment Rights Act. In such a case there is NO limitation period.

Consider the following:

Helen works for a digital advertising company Incentive Ltd. Like four of her colleagues, she is a paid a basic of £1500 pw net and earns on average £3,000 net commission. She has just come back to work having had 10 days holiday. Her holiday pay has always been calculated on the basis of her basic pay £375/ week or £75/day. However Helen should have been paid an extra £150/day while she was away i.e. £1,500

However Helen had also taken a further 14 days holiday earlier in the holiday year for which she is now owed 14 x £150 = £2,100

Even more worryingly Helen has been with the company for 10 years and has taken 28 days holiday each year leading to an underpayment of £42,000.

Thus Helen is owed £45,600 and her 4 colleagues paid on a similar basis may have similar claims.

Clearly Incentive Ltd needs to take urgent action – including making sure all future payments of holiday pay are correct.


31/07/14

36 Family’s Kate Tompkins writes in Family Law Week – “When is Same–Sex Parenting a Private Fostering Arrangement?”

For the full article, please click here.

30/07/14

36 Crime currently recruiting 2nd Junior Clerk

Salary: up to £27,000

Closing date: Thursday 14th August 2014

 

36 Bedford Row are one of the country’s largest sets, comprising over 80 tenants, including 11 QCs, practicing in Serious & Complex Crime; Family Law; Commercial & Civil Law, Consumer Law, Employment  & Family. Chambers are managed by a CEO and 3 Practice Managers for each of their core teams in crime, civil & family.

A successful and expanding set, they are looking to recruit an experienced criminal clerk to fulfil a vital role in their dedicated criminal clerking team

Reporting to the Criminal Practice Manager, key responsibilities will include:

·         Management of daily diaries for Crime & Consumer teams

·         Assisting with short & long term diary management

·         Assisting with clash management

·         Booking cases & recommending suitable Counsel

·         Supervising & assisting junior clerks

·         Supervision of complex document management (LEXDOC) and helping out when necessary

·         Assisting with business development events and marketing projects

·         Attending relevant functions

·         Developing strong relationships with Instructing Solicitors, Government bodies & all those instructing Chambers

 

All enquiries to:

ABC Chambers Solutions

1 Fetter Lane

London EC4A 1BR

tel : 0207 979 2070

www.abcchamberssolutions.com

 

Please e–mail a comprehensive CV to: recruitment@abcchamberssolutions.com

or contact Bill Conner on 07557 670560 or John (Charles) Charlick on 07808 137902 for a confidential discussion. All direct applications will be forwarded to ABC Chambers Solutions.

36 Bedford Row  is an equal opportunities employer and is committed  to providing equality of opportunity regardless of race, colour, ethnic or national origin, nationality, citizenship, sex, gender re–assignment, sexual orientation, marital or civil partnership status, age, disability, religion or belief, political persuasion, pregnancy or maternity.

10/07/14

Insults and Injuries; the court’s approach to personal injury damages in financial remedy proceedings – 36Family’s Pranjal Shrotri writes in Family Law Week

To read the full article, please go here: 

http://www.familylawweek.co.uk/site.aspx?i=ed130814 

08/07/14

Jessica Franses Art Law Update: Quis Custodiet Ipsos Custodes? – Banksy’s Spy Booth

Read the full blog post here:  

http://jessicafranses.com/quis-custodiet-ipsos-custodes-banksys-spy-booth 

08/07/14

Civil Litigation – Litigation not a game for opportunists. Mitchell revisited.

By Stephen Bishop

Denton & Ors v TH White Ltd & Ors [2014] EWCA Civ 906  

On 4 July, the Court of Appeal (Lord Dyson MR, Lord Justice Jackson and Lord Justice Vos) revisited Mitchell and the issue of relief from sanctions under CPR3.9 in the 3 joined appeals of Denton, Decadent and Utilise with the Bar Council and Law Society as interveners. The Court was concerned [37] that “some judges are adopting an unreasonable approach to rule 3.9(1)” and that Mitchell has been misunderstood, “leading to decisions which are manifestly unjust and disproportionate” [38].

The Court gave further guidance introducing a three–stage test to be applied by courts, including a change to an assessment of “seriousness or significance” of defaults as opposed to whether they were “trivial” per Mitchell. However it is unlikely that this will be an end to satellite litigation on compliance and relief as these 3 appeals were “extreme examples of judges misapplying rule 3.9” [97] and the Court was not unanimous as to whether CPR 3.9(1)(a) and (b) should be given particular weight. “Paramount importance” as set out in Mitchell has been replaced, in the opinion of the majority, by “particular importance”.

The resounding positive of the judgment, some may think, is that once again the Court of Appeal reinforced that the Jackson reforms were not intended to create “trip wires” and suggested, among other things, “heavy costs” penalties for respondents who unreasonably object to an application for relief. Litigants are advised to be reasonable and proportionate.

Guidance on the correct approach to relief from sanctions applications

The new approach can be summarised as:

1.  Identify the default and assess its “seriousness or significance” (instead of the “triviality” criteria introduced by Mitchell).  In considering this factor, the court could look at whether the breach imperils future hearing dates or otherwise disrupts the conduct of litigation. If the breach is determined to be neither serious nor significant, relief is likely to be granted and the court is unlikely to need to spend much time on the second and third stages.

2.   Consider why the default occurred (i.e. whether there is a good reason for it). The Court of Appeal was keen to stress the examples given in para 41 of Mitchell were no more than examples.

3.   Evaluate all the circumstances of the case, so as to enable it to deal justly with the application. An application for relief from sanctions for a non–trivial breach for which there was no good reason will not automatically fail, contrary to what people have taken incorrectly from Mitchell.

a.   At this stage relevant factors could include the promptness of the application; other past or current breaches; etc. [36].

b.   The majority view was that the need for litigation to be conducted efficiently, at proportionate cost, and to enforce compliance with rules, practice directions and court orders, 3.9(1)(a)&(b), were “of particular importance and should be given particular weight”.

c.    Jackson LJ dissenting was of the view [85] that “What the rule requires is that the two factors be specifically considered in every case. The weight to be attached to those two factors is a matter for the court having regard to all the circumstances.” He agreed with the Bar Council’s submission that (a) and (b) should have a seat at the table, not the top seats at the table.

Satellite litigation and non–cooperation

The Court was clear that “it is wholly inappropriate for litigants or their lawyers to take advantage of mistakes made by opposing parties in the hope that relief from sanctions will be denied and that they will obtain a windfall strike out or other litigation advantage.” [41]

Thus contested applications for relief should become exceptional as firstly, compliance should become the norm, and secondly, “because the parties should work together to make sure that, in all but the most serious cases, satellite litigation is avoided even where a breach has occurred.” [42]

The Court emphasised the need to be reasonable and proportionate [43]:

·  Heavy costs sanctions should, therefore, be imposed on parties who behave unreasonably in refusing to agree extensions of time or unreasonably oppose applications for relief from sanctions;

·  An order to pay the costs of the application under rule 3.9 may not always be sufficient;

·  An unreasonable opposition might engage CPR44.11 thus the opposing party might face a substantial reduction in its costs recovery even if ultimately successful.

The judgment reinforces that compliance is the required behaviour of parties but compliance is not an end in itself and more important than justice in any given case. An echo of the past perhaps. Parties are advised to be realistic rather than opportunistic when considering a request for relief.

 

04/07/14

Criminal judicial review team provide webinar for London Criminal Courts Solicitors’ Association

David Ball, Piers von Berg and Saoirse Townshend provided a webinar yesterday on criminal judicial review for the LCCSA. It covered (i) how to get funding and obtain permission and (ii) commonly occurring areas of review in the police station and Magistrates’ Courts. It also included: new changes to legal aid, recent case law on challenging police cautions and adjournments. The recording is now available on the LCCSA’s website for members. 

Link – http://www.lccsa.org.uk/criminal-judicial-review-webinar-01072014/

 

03/07/14

36 Family extends a warm welcome to Charlotte Georges who joins as a tenant today

Head of 36Family Andrzej Bojarski said: 

‘Charlotte joins us from chambers in Sussex. She will add further strength to our already formidable child law team and help us to continue to develop our professional presence in Sussex and along the South Coast.’

 

03/07/14

36Family’s Andrzej Bojarski joins the team at www.FamilyArbitrator.com

For full details, please see here: http://www.familyarbitrator.com/andrzej-bojarski-joins-familyarbitrator-team

02/07/14

36 Civil – Property Update for June 2014 now available

To download a copy please click here

Recent News

36 Family’s Gillian Temple–Bone successfully appeals decision in the Court of Appeal in Re W (Children) acting for the Local Authority
Read more

Adrienne Lucking QC and Felicity Gerry QC speak to Chambers’ Women in Law: “Female Silks: Career milestones, challenges and tips for the next generation”
Read more

36 Consumer release follow up slides and annotations from TSI 2014 in Harrogate
Read more

36 Crime’s William Harbage QC and Mary Prior successfully prosecute Hinckley murderer James Burton
Read more

Holiday (Pay) from Hell – Richard O’Dair, Head of 36 Employment
Read more

36 Family’s Kate Tompkins writes in Family Law Week – “When is Same–Sex Parenting a Private Fostering Arrangement?”
Read more

36 Crime currently recruiting 2nd Junior Clerk
Read more

Insults and Injuries; the court’s approach to personal injury damages in financial remedy proceedings – 36Family’s Pranjal Shrotri writes in Family Law Week
Read more

Jessica Franses Art Law Update: Quis Custodiet Ipsos Custodes? – Banksy’s Spy Booth
Read more

Civil Litigation – Litigation not a game for opportunists. Mitchell revisited.
Read more

Criminal judicial review team provide webinar for London Criminal Courts Solicitors’ Association
Read more

36 Family extends a warm welcome to Charlotte Georges who joins as a tenant today
Read more

36Family’s Andrzej Bojarski joins the team at www.FamilyArbitrator.com
Read more

36 Civil – Property Update for June 2014 now available
Read more