A trilogy of important family law cases

July has been a legally busy month with numerous court decisions and other events.  August is usually a little quieter but we shall see!  In this post I draw attention to three recent cases which illustrate the immensely difficult work undertaken by the judges in the High Court's Family Division and in the Court of Protection.  I am not attempting any detailed analysis of the decisions but will say enough to try to bring out the key points.

XCC v AA and others [2012] EWHC 2183 (COP) - Parker J - judgment

This is not an entirely straightforward case but it basically concerned whether there were grounds in English law not to recognise a marriage entered into in Bangladesh between persons referred to as DD and AA.  Parker J concluded that there were "overwhelmingly strong public policy grounds and welfare grounds not to recognise the marriage" and he made a declaration accordingly.

DD has a very significant degree of learning disability, little language, very little comprehension of anything other than simple matters, and needs assistance with almost all aspects of her daily life. Her parents

Consultations and Bills

There are several active consultations:

1.  UK Bill of Rights - The British Bill of Rights - Second consultation - responses required by 30th September

2.  Justice Swift and Sure - Perhaps not strictly a consultation but the Ministry of Justice invited feedback on the White Paper - see Swift and Sure: Has Flashman come up with flash incarceration?

3.  Law Commission - Has a number of consultations running:

a)  Scoping exercise on The Defences of Insanity and Automatism- responses by 18th October

b)  Unfair Terms in Consumer Contracts - responses by 25th October

c)  Scandalising the Court - responses by 5th October

and a number of others - here.

Bills in Parliament:

The Twitter Joke judgment considered

Lord Judge LCJ

Update 30th July:  At 12.20 pm (30th July) the following was posted on the Crown Prosecution Service News Brief -

"Clarification on decision making in Paul Chambers case

The DPP was not the reviewing lawyer in the case of Paul Chambers, but in June he did instruct the team managing it to consider conceding the appeal. This was considered and progressed, however, at a later stage the DPP was advised that, as a matter of law, conceding the appeal would not be possible. This is because it was not possible because the key finding of fact in the case was a finding of the Crown Court, which only the High Court could overturn. The DPP accepted that advice and reluctantly agreed that the appeal had to proceed."

The High Court took the facts from the case stated (Judgment at para 5).  This is normal practice in case stated appeals since such appeals are concerned with questions of law and the High Court does not usually hear the witnesses etc.  The High Court also noted at para 33 that proper respect had to be shown to such findings of fact but the judges clearly saw the Crown Court's finding - that the tweet was menacing - as flawed since no weight was given to some of the evidence and disproportionate weight to other aspects of the evidence (see discussion in para 33 and conclusion in 34).

Subsequently, it appears that the above statement was removed from the CPS website.

For further background to case stated appeals see Magistrates' Courts Act 1980 s111 .... Senior Courts Act 1981 s28 .... Criminal Procedure Rules Part 64 .... and the case of Paul Oladimeji v DPP [2006] EWHC 1199 (Admin).

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The "Twitter Joke" case - (see previous posts of 27th June and 27th July) - has been hailed as a victory for free speech.  Mr Chambers, a young man of entirely good character,  had his conviction quashed as a result of the decision by the Lord Chief Justice who sat with Owen and Griffith Williams JJ - full judgment - [2012] EWHC 2157 (QB).

Nothing in the judgment will prevent the prosecution of those who make serious threats via electronic media.  However, the judgment is likely to ensure that prosecutions are only brought in such cases.

The "tweet" which Mr Chambers made was held not to be a menacing communication within the meaning of the Communications Act 2003 s.127(1)(a).  A message of a "menacing character" is part of the actus reus of the offence (basically, that which must be done to constitute the offence).

The Act:

A person is guilty of an offence if he -

The Twitter Joke appeal ~ Paul Chambers wins the appeal

Mr Paul Chambers

Updated with links 28th July

A Divisional Court of the Queen's Bench Division has allowed the appeal by Mr Paul Chambers against his conviction of the offence under the Communications Act   See the full judgment - [2012] EWHC 2157 (QB) - delivered by the Lord Chief Justice.    This case was discussed in previous posts on this blog - the most recent is here.

It was a long running case heard initially in the Magistrates' Court where a District Judge (Magistrates' Courts) found Mr Paul Chambers guilty of the offence under the Communications Act 2003 section 127(1) - sending a  "menacing" communication via a public electronic communications network (PECN).  Mr Chambers appealed against his conviction to the Crown Court and, this time, was found guilty by a judge sitting with two magistrates.   The next step was an appeal - "known as Appeal by Case Stated" - to a Divisional Court of the Queen's Bench Division.  Such appeals are concerned with questions of law.  This appeal was heard by two judges who failed to agree.  A further hearing in the Divisional Court was ordered at which the Lord Chief Justice presided and this second appeal was decided in favour of Mr Chambers.  In all, Mr Chambers was subjected to seven court hearings and over 9 hours of court time.  During the process he lost two jobs.

The Lord Chief Justice set out the relevant sections of the Communications Act 2003 and also the detailed facts (paragraphs 5 to 18).  The legal questions

The London 2012 Olympics are here and other items

Olympics:  The Opening Ceremony of the 2012 Olympics is upon us - London 2012.  The eyes of the world will be on London and the Games which continue until 12th August.  They will be followed by the immensely inspiring Paralympics ~ 29th August to 9th September.  In this cynical age, bedevilled as it is by seemingly insurmountable problems, it is worth reminding ourselves of the fundamental principles said to underlie the Olympics.  "The goal of Olympism is to place sport at the service of the harmonious development of humankind, with a view to promoting a peaceful society concerned with the preservation of human dignity" - Olympic Charter 2011. 

Sport and the law exhibition: The Supreme Court has handed down its last judgments of the Trinity Term.  The Michaelmas Term commences on 1st October.  Meanwhile, the court is hosting an exhibition on sport and the law. Developed in partnership with academics from De Montfort University (DMU) in Leicester and the British Association for Sport and Law (BASL), the exhibition forms part of the official programme of events inspired by the London 2012 Games.  The exhibition is open on weekdays (0930-1630) until the end of September and admission is free.

"Twitter" Joke: Judgment is to be delivered

Coalition in crisis

According to an article in the Daily Mail 25th July, the coalition government is now in crisis over the latest Gross Domestic Product (GDP) announcement.  It is said that the coalition is turning to "in fighting."  In previous Parliaments, the Prime Minister would have brought them all to heel by the mere hint that he might consider calling an election.  One wonders whether the Prime Minister now regrets the enactment of the Fixed Term Parliaments Act 2011 which, basically, says that the next election will be on 7th May 2015.  The Act does not prevent an earlier election but one of the procedures in section 2 of the Act must apply: the House of Commons passes a motion for an election - or - the House votes that it has no confidence in the government and the period of 14 days after the day on which that motion is passed ends without the House passing a motion that it has confidence in the government.

On the GDP announcement see Director of Finance Online

Defending allegations made in care proceedings ~ Costs

The Supreme Court has given judgment in T (Children) [2012] UKSC 36 - Judgment and Press release.  It is a unanimous decision allowing an appeal from the Court of Appeal judgment at [2010] EWCA Civ 1585.

In child care proceedings, it is far from uncommon for very serious allegations (e.g. of sexual abuse against the children) to be made against individuals and those individuals may well wish to contest those allegations.  Legal aid is subjected to means testing which is not particularly generous.  In the absence of legal aid, a person wishing to mount such a challenge will face formidable problems and there is serious potential for massive injustice to them.

Background:

The appeal concerned the liability of a local authority to pay the costs of a party to care proceedings.  The actual care proceedings took place in 2010 at Kingston-upon-Hull County Court where a judge refused to make an order for costs in favour of grandparents and against the Hull Council.  In 2009, the judge had held a very lengthy fact finding hearing which had been spread over some five and a half weeks !   The grandparents of two children were intervening parties to the fact finding hearing.  The grandparents were