The Supreme Court ~ J (Children) [2013] UKSC 9 and Re B (A Child) [2013] UKSC 33

A difficult area of family law is that relating to Public Law proceedings where the courts are empowered to make orders which could have the result that a child is removed from the natural family.  Various recent cases demonstrate all too well some of the profound difficulties involved.

Background:

The Children Act 1989 (CA89) sets the boundaries of State intervention in relation to parents and their children.  The courts are empowered, in defined situations, to issue various orders such as contact orders, residence orders, supervision orders and care orders.  Under the Adoption and Children Act 2002, children may be 'placed' for adoption (placement orders) and then adopted to suitable adoptive parents and this may (not necessarily always) break the child's ties with the natural family.  Given the draconian nature of some of these powers, it may surprise some readers to learn that 23 years after the CA89 came into force the courts are still deciding questions relating to the meaning of the Act, its application to particular cases and the role of the appellate courts in relation to decisions of those judges tasked with the day-to-day application of the law.

Broadcasting the Court of Appeal

Recording and Broadcasting of some proceedings in the Court of Appeal commences today - Sky News ~ Cameras to film court after campaign

Sky News will be broadcasting proceedings from inside the Court of Appeal from 10.30am - watch coverage on Sky 501, Virgin Media 602, Freesat 202, Freeview 82, Skynews.com and Sky News for iPad.

More detail of the scheme is in the Court of Appeal (Recording and Broadcasting) Order 2013 made by the Lord Chancellor under section 32(1) of the Crime and Courts Act 2013.  The Order applies to the recording and broadcasting of hearings in the Court of Appeal, in open court and before a full court.

Contrary

Press regulation ~ a legal challenge fails

Today, the High Court rejected a challenge by the Press Standards Board of Finance (PressBof) which was aimed at preventing the Privy Council approving the Royal Charter of Self Regulation of the Press - The Independent 30th October. 

Richard Gordon QC, representing PressBof, told the court that PressBof had not been given notice of a period of openness in which it could have made representation in support of its charter and that it was not provided with information on the process and the criteria on which its document would be judged.  “This process, we say, was conspicuously unfair,” he told the court. “It’s almost Kafkaesque in terms of not knowing what the next step is intended to be.”

Sharon Shoesmith ~ reported to have received £600,000 compensation ~ has anything been learned?

Sharon Shoesmith was Director of Children Services in Haringey at the time of the death of Baby P.   It is reported that she has settled her claim against Haringey and is to receive some £600,000 in compensation - Daily Mail 29th October.  This follows on from a Court of Appeal (Civil Division) decision in May 2011 discussed at Sharon Shoesmith wins her appeal (27th May 2011).and, in greater detail, at Accountability is not synonymous with Heads must Roll (30th May 2011)

In the Court of Appeal, Maurice Kay LJ said - 'it is our task to adjudicate upon the application and fairness of procedures adopted by public authorities when legitimate causes for concern arise, as they plainly did in this case.  Whatever her shortcomings may have been (and, I repeat, I cannot say), she was entitled to be treated lawfully and fairly and not simply and summarily scapegoated.'

Family Law ~ a torrent of recent cases

There has been a torrent of recent family law cases.  Here is a compilation of some of the recent judgments. It is not a comprehensive list.  Even for the family law specialist, this is a formidable amount of reading.  There is also the View from the President's Chambers (Issue No. 7) and the new Family Court Guide.


Supreme Court:

J (Children) [2013] UKSC 9 -  The Children Act section 31(2) threshold is an important measure to protect a family from unwarranted intrusion while at the same time protecting children from harm. The wording of Section 31(2) has been the subject of six appeals to the House of Lords and Supreme Court. Those cases have consistently held that a prediction of future harm has to be founded on proven facts: suspicions or possibilities are not enough. Such facts have to be proved on the simple balance of probabilities.  See Family Law Week.

B (A Child) [2013] UKSC 33. - a challenge to a care order made with a view to adoption.  Very important with regard to application of Article 8 of the European Convention on Human Rights and the role of appellate courts when an order is challenged on the basis of proportionality.   The making of an order which removed a child from its natural family was a measure of last resort, only to be adopted where it is "necessary" and when "nothing else will do".   Analysis of the case via Family Law Week.

A (Children) [2013] UKSC 60 - whether the High Court has jurisdiction to order the "return" to this country of a small child who has never lived or even been here, on the basis either that he is habitually resident here or that he has British nationality.   Analysis of the case via Family Law Week.

The Press ~ The Royal Charter ~ (again)!

I make no apology for returning to the question of the Royal Charter on Self Regulation of the Press.  This was discussed in my earlier post of 14th October - We by Our Prerogative Royal will, ordain and declare as follows

That post concluded by noting: 'Perhaps the Charter will somehow be challenged before the courts.  Unless that happens, the existence of a prerogative power to regulate the press is likely to become accepted given that the Charter itself effectively claims a prerogative right to do so by using the words:

NOW KNOW YE that We by Our Prerogative Royal .....will, ordain and declare ....

It might then be wondered what might be ordained and declared at some time in the unknown future when some further need for State Control over some activity is perceived.'

The House of Lords has now registered concern - Daily Mail 26th October

R v Gul - UK Supreme Court - Observations

'Terrorism' has proved very difficult to define and there is no internationally agreed definition.  For the purposes of law in the United Kingdom, the Terrorism Act 2000 section 1 gives the following definition:

(1) In this Act “terrorism” means the use or threat of action where -

(a) the action falls within subsection (2),

(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.

Press Regulation ~ View of Journalists

London Evening Standard 23rd October 

Media heavyweights have branded the government’s proposed royal charter for press regulation a “medieval piece of nonsense.”

Speaking at a London Press Club debate last night Guardian editor-in-chief Alan Rusbridger, Daily Telegraph writer Andrew Gilligan and biographer Tom Bower slammed the plans, saying they posed a real threat to press freedom and the future of investigative journalism.  A draft plan to regulate the press includes powers to impose million-pound fines on UK publishers, demand apologies, and set up a new low-fee complaints system.

It is interesting that the Press Club see a number of threats to investigative journalism - see London Press Club - Can Investigative Journalism survive?

The Royal Charter

May a 'whole life' sentence be imposed for murder?

According to The Telegraph 21st October, Mr Justice Sweeney has ruled that a whole life tariff may not be imposed at the time of sentencing an individual for murder.  The newspaper reported:

'Ian McLoughlin, 55, was told he must serve a minimum of 40 years in prison, after he admitted murdering 66-year-old Graham Buck in Little Gaddesden, Hertfordshire, in July.  Mr Buck, 66, suffered fatal stab wounds to the neck when he responded to cries from the home of his neighbour, 86-year-old Francis Cory-Wright in the village near Berkhamsted.

But Mr Justice Sweeney said

Thoughts on the Supreme Court's decision in Chester and McGeogh

The long term legal importance of a case can sometimes have little to do with the actual question which was before the court at the time.  An example of this may prove to be the Supreme Court's judgment in the recent 'prisoner voting' case:

R (on the application of Chester) (Appellant) v Secretary of State for Justice (Respondent)
McGeogh (AP) (Appellant) v The Lord President of the Council and another (Respondents) (Scotland)

• Judgment (PDF)
• Judgment via Bailii 
• Press summary (PDF)

The case itself concerned two appeals by serving prisoners - (serving sentences for murder) - who had found themselves disenfranchised in elections as a result of the statutory prohibition on serving prisoners voting.

Legal Miscellany

Supreme Court UK ~ 16/10/13

The Royal Charter on the Press:

Head of Legal Blog has published an item examining in some detail the drafting of the Royal Charter on Self Regulation of the Press.  See also High Tomlinson QC at Inforrm's blog - Leveson, Article 10 and apologies - another red herring



Voting by prisoners:

R (on the application of Chester) (Appellant) v Secretary of State for Justice (Respondent)
McGeogh (AP) (Appellant) v The Lord President of the Council and another (Respondents) (Scotland)

• Judgment (PDF)
• Press summary (PDF)

View the judgment being handed down by Lord Mance

Two prisoners

We by Our Prerogative Royal .....will, ordain and declare as follows

James I - Divine Right

NOW KNOW YE that We by Our Prerogative Royal .....will, ordain and declare as follows.  These words appear in the draft Royal Charter on Self Regulation of the Press.  The Charter is likely to be issued by the Privy Council at the end of October.
 
The Privy Council is an ancient and interesting institution.  Some would argue that it is anachronistic: a survival from medieval times.  The Council's website is here.   The government intends to use the Privy Council to issue a Royal Charter in connection with Press Regulation.  A narrow view of the draft Royal Charter on Self-Regulation of the Press would be that it does no more than incorporate a body to be called the Recognition Body.  Viewed in this narrow way, the use of a Royal Charter would hardly be controversial since it is well established that the Privy Council may grant Charters of Incorporation.   There are over 900 such chartered bodies - (list via Privy Council website).  In 2012, the the Chartered Institute of Legal Executives was granted a Royal Charter.  The Institute had been in existence since 1963.  Royal Charters may also be used to create bodies or to continue bodies in existence.  Examples include the Bank of England and the British Broadcasting Corporation (BBC).

Fight the good fight ... Defending legal aid

The fight for the future of legal aid continues.  Please read this superb item on the website of 1 Pump Court -

Defending Legal Aid. 

A couple of quotes from the article:

'The latest round of consultation, due to end on 1^st November 2013, retains within the proposals a number of features that will irreversibly undermine the criminal justice system. These are combined with proposed fee cuts for solicitors and barristers that will make working as a public servant in the criminal justice system financially untenable.

This raises the spectre of under-qualified, commercially orientated firms moving in to exploit the sector for profit, to the detriment of society as a whole.'

The 'final' draft Royal Charter on Self -Regulation of the Press

Here it is - the 'final' draft of the Royal Charter on Self-Regulation of the Press. 

The regulatory arrangements:


1. The Royal Charter - this creates a Recognition Body and sets out matters such as the membership of the body and its powers - Royal Charter on Self-Regulation of the Press.  Essentially, the Recognition Body will be responsible for recognition of independent regulatory bodies and will have power to withdraw recognition from a regulator.  The use of a Royal Charter to incorporate a body (that is to create a body with its own legal personality) is not, in itself, unusual and over 900 chartered bodies exist - Letters Patent ~ Royal Charters ~ Press Regulation (13th February 2013). 

Catching up with Press Regulation

Updated:

The Privy Council has rejected a draft Royal Charter put forward by the Press.  Their reasons for doing this are in a letter dated 8th October 2013.  Maria Miller MP made a statement to the House of Commons - The Guardian 8th October.  Miller's statement indicates that a revised cross party charter will be laid before Parliament by Friday 11th October and the Privy Council will consider it on 30th October.

On Thursday 10th October, the House of Commons Culture, Media and Sport Committee is to hear evidence from Sir Brian Leveson (now President of the Queen's Bench Division) who, as Lord Justice Leveson, was Chairman of the Inquiry into the Culture, Practices and Ethics  of the Press.

A summary of  Sir Brian's key recommendations is here.   The idea of a Royal Charter

Human Rights attacked again ~ the thorny issue of 'just satisfaction'

UPDATE 13th November - the Daily Mail published a 'correction' to its story.  Too little and too late as Adam Wagner points out in a post on UK Human Rights blog.

UPDATE FRIDAY 11th October:  Council of Europe - Court concern at seriously misleading UK news articles.

This is highly unusual but the Council of Europe has challenged media reports relating to payments to 'criminals.'  The Council claims that the media have mixed together costs and compensation payments.  Also, some of those paid compensation were not criminal at all but simply individuals whose human rights had been breached.  The Council also strongly refutes the statement that the judges are not legal experts.

----- 

The attack on human rights protection is relentless.  Here is the Daily Mail today.  The Telegraph has the same story.  The Mail article states that Judges in Strasbourg handed the criminals taxpayer-funded payouts of £4.4 million – an average of £22,000 a head.  Recipients since 1998 include the traitor George Blake, extremist cleric Abu Qatada and the IRA killer dubbed Mrs Doubtfire.

The figures have been produced by Philip Davies MP and will have fuelled fresh demands for Britain to pull out of the convention on which the European Court of Human Rights bases its rulings.

The Mail also states that - 'Because they are political appointees many of the court’s judges are not even legal experts.'

Criminal Damage ~ Lawful Excuse ~ Drones

Criminal damage is an interesting offence created by the Criminal Damage Act 1971 which almost entirely replaced offences in earlier legislation such as the Malicious Damage Act 1861.  More details about criminal damage are on the Crown Prosecution Service (CPS) website.  The 1971 Act stemmed from the work of the Law Commission (Law Com. No. 29, 1970).

One fact of historical interest is that the Act repealed the Dockyards Protection Act 1772 and thereby removed from the law one of the remaining capital offences - (see debate in Parliament on 12th February 1998).

The 1971 Act section 1 creates the offence of destroying or damaging property:

Petrol - avoiding payment - theft?

The Telegraph has published an item about individuals who fill up their vehicles at self-service petrol stations and then claim that they do not have the means to pay with them - Telegraph 4th October - Legal loophole closed to prosecute persistent fuel thieves.  They are then asked to sign a document acknowledging that they owe the money and, of course, they do do not return to pay.  There appears to have been some reluctance to prosecute such individuals for theft.  From the legal perspective, it is necessary to consider the definition of theft.

The basic law is to be found in the Theft Acts 1968, 1978 and the Theft (Amendment) Act 1996.  These Acts were based on recommendations of the Criminal Law Revision Committee's 8th report (1966)  and 13th Report (1977).  The 1996 Act was enacted to address the House of Lords decision in R v Preddy and others [1996] UKHL 13 but this need not concern us further here.

The Acts are the authoritative sources for the definitions of theft and related offences.  They

The start of the 2013-14 Legal Year

Michaelmas Law term is now under way and will last until 20th December.  The legal year began with the traditional Judges' Service and the Lord Chancellor's Breakfast though this is the first time that I can recall when there has been some publicly stated objection to the holding of the service - see Joshua Rozenberg - The Judges' annual church service is expensive and inappropriate.  I am traditionalist in nature and felt that something was lost when wigs and gowns generally disappeared in the Supreme Court.   It would be good to find a way of continuing with some form of multi-faith service but will that be possible in our increasingly secular nation?   Lord Neuberger (President of the Supreme Court) has said that he would regret it very much if the service came to an end - 'I think it is an occasion where we get together, it is an occasion which is of some solemnity but some splendidness, and it has a unifying factor.'  Cost is of course another factor and it seems inappropriate to be spending money on such events when legal aid is being severely cut.

Earlier this year, Lord Neuberger

The Conservative Party Conference - Speech of Chris Grayling MP

On 30th September, Chris Grayling MP (Secretary of State for Justice and Lord Chancellor) delivered his speech to the Conservative Party Conference in Manchester - Speech by Chris Grayling to the Conservative Party Conference

Like the speech of Sadiq Khan MP at the Labour Party Conference, Chris Grayling's speech was also short.  He opened by referring to a story in the Daily Mail about several young men having an easy time in prison.  We were informed that, 'within twelve hours, they were in segregation.  Locked up for longer in their cells, not hanging out with their mates. Without a TV.  Privileges stripped. Weeks added to their sentences after a swift disciplinary process.'   Good red meat there for the Party faithful.

Grayling went on to refer to the need for confidence in the justice system and that victims often felt let down.  Next he referred to some changes in the law

The Labour Party Conference - Speech of Sadiq Khan MP

October is with us and it is Conference time for the political parties.  In his conference speech on 25th September, Sadiq Khan MP (Shadow Secretary of State for Justice), spoke of the need for confidence in the criminal justice system so that, for example, more people are encouraged to report crime and come forward as witnesses.  Victims were a key point in his speech and Labour would enhance the role of the Victims' Commissioner and sweep away 'worthless codes of practice' replacing them with an Act dealing with the rights of victims and witnesses - (see The Guardian 30th September - Witnesses tell of feeling abandoned and uninformed ).  Khan was not specific as to which codes were 'worthless.'  Presumably he meant codes such as the Code of Practice for Victims of Crime. 

Khan was particularly condemnatory