Jason Hughes (2009)

Private and Public Law Children

Jason accepts instructions in both private and public family law and has experience of a wide range of hearings relating to care proceedings, placement and adoption proceedings, as well as child arrangement proceedings and has experience of Brussels II applications, finding of fact and non-accidental injury hearings. Jason regularly receives instructions from Local Authorities, Parents, Grandparents and Guardians.

Matrimonial Finance

Jason is happy to take instructions in all areas of ancillary relief, and is able to advise from first appointment through to the final hearing. He is happy to advise on the financial remedies available following divorce, and is able to effectively negotiate as required.

Injunctions

Jason regularly accepts instructions in relation to urgent emergency injunctions whether that is to seek, or defend, an application for a Non-Molestation Order (non-mol) or occupation orders to regulate the occupancy of a home or Protection from Harassment Act applications. Jason also deals with Anti-Social Behaviour Injunctions (ASBI) that often involves the council and may impact upon a persons right to remain in their property.

 

 

Please click here for Jason's privacy policy.

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Removal of children from the care of their parents

Practitioners who do care proceedings will no doubt be fully aware of the changes to the Public Law Outline and in particular the timetable for children such that care proceedings should be concluded within 26 weeks. A possible unintended consequence of this is that local authorities, save in dire cases, appear to be working with families for longer before care proceedings are issued. When proceedings are issued it is not uncommon in certain cases for it to be agreed at court that children should be made subject to Interim Care Orders with the plan being that the child remains at home. This is also a feature of some cases where the final outcome is that the child remains at home but the under auspices of a final care order. It is not uncommon for such arrangements to be agreed between the parties at the time.

Although this may be a pragmatic arrangement difficulty can occur when things go wrong and the Local Authority choose to seek to exercise their parental responsibility by removing the child from the care of his parents. In such situations the Local Authority would no doubt assert (and in most cases likely have valid reasons) that they believe that the “child’s safety requires immediate removal”. The parents may well feel that the proposed action of removal is a disproportionate response to whatever difficulty may have arisen.

When an interim care order is in force the correct procedure is that the Local Authority should inform the parents of the proposed change of plan and have the matter remitted back to court so that the court can determine whether removal should be authorised (or if the Local Authority have acted unilaterally then whether the removed child should immediately return back to the parents.

In situations where court proceedings have concluded such that the child remains at home but with the Local Authority having a final care order then the situation is different, in line with the case of Re W and B (Children) (Care Plan) [2002] H.R.L.R. 26 “a cardinal principle of the Children Act 1989 was that the courts were not empowered to intervene in the way local authorities discharged their parental responsibilities under final care orders”.

This situation was considered in the case of Re: DE [2014] EWFC 6 (Fam) that confirmed that the recent provisions of Re B-S should prevail such the Local Authority should identify the possible options and analyse the arguments for and against removal and should only consider removal if it is necessary to safeguard or promote the child’s welfare. Without this then any removal or threat of removal would be an interference with the Article 8 rights of the parents and the child. If the parents feel this is the case then the appropriate remedy would be to apply to discharge the care order and further to seek an injunction under s.8 of the Human Rights Act 1998. If such an application is made then directions should be made for the filing of evidence followed by a contested hearing.

In Re: DE Mr Justice Baker provided the following summarised guidance in cases such as these: (1) where a care order is made with the child remaining at home it should be a term of the care plan, and a recital in the care order, that the local authority agrees to give not less than fourteen days notice of a removal of the child, save in an emergency, (2) the Local Authority must rigorously analyse all realistic options and involve the parents in the decision making process, (3) if the parents choose to seek to discharge the care order then consideration should also be given to also bringing an application under s.8 Human Rights Act, (4) if the Local Authority give notice that they intend to remove the child which is met with an application to discharge the care order then they must not remove the child unless his immediate removal requires it and must continue to consult with the parents; failure to do this is likely to be unlawful, (5) on an application to discharge the care order the court needs to determine whether this also gives rise to a likely application under the Human Rights Act, this is necessary as parents may not qualify for legal aid and so may be bringing the applications themselves, (6) upon hearing an application under s.8 Human Rights Act, pending the outcome of an application to discharge the care order, then the court should normally grant the injunction unless the child’s welfare requires his immediate removal.

In essence the removal, or proposed removal, of a child from the care of his parents whether at an interim stage or following the conclusion of proceedings must only be considered as the last possible resort. Save in genuine emergency the Local Authority should only remove the child once a robust analysis of all available options has taken place that conclude this is the only viable option and further there needs to be ongoing consultation with the parents with clear notice being given to afford them the chance to have the court scrutinise the proposed removal.

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McKenzie Advocates!

ADVOCATES! As legal professionals we all know the commitment and dedication required to succeed as practising lawyers and no doubt we have all come up against litigants in person supported by McKenzie friends. In a recent matter, my opponent who was a litigant in person applied to the court for his McKenzie friend to be granted rights of audience and to provide formal legal representation which was supported by a CV of the McKenzie friend documenting a comprehensive legal resume including appearances in the High Court. The statutory framework for the granting and obtaining such rights of audience is set out in the Legal Services Act 2007, which describes the exercise of a right of audience as one of several "reserved legal activities" that may be carried on only by "authorised persons" and "exempt persons". An authorised person being someone authorized, for example, by the Law Society or General Council of the Bar, i.e. barristers and solicitors.

The grey area pertains to the definition of exempt persons, one such category being a person who is not an authorised person but who has been granted rights of audience by the court in relation to those proceedings. In determining whether to grant rights of audience the practice note in McKenzie Friends: Civil and Family Courts [2010] 1 WLR 1881, provided guidance on the matter and explained that McKenzie friends have no right to act as advocates but did acknowledge the court’s power to grant such a right on a case by case basis to McKenzie friends, although it further notes that this right should be granted in ‘exceptional circumstances’ as otherwise this would be contrary to the will of Parliament.

The key argument advanced in the matter I was faced with was that the litigant in person stated that he no longer trusted qualified legal personnel and consequently his only recourse to a right to a fair trial was to be ‘legally’ represented by his pseudo-qualified, pseudo-professional McKenzie friend!

The concern of such an approach on the client is obvious, an unqualified representative may cause undue delay with consequential increased stress and costs although the court may feel that pseudo-legal representation may improve upon no representation. The counterweight powers of the court to address this are to make provision for costs together with the right to rescind the right of audience. Having granted a right of audience this needs to be continually appraised throughout the court process and if the balancing of the parties respective rights are tipped one way or the other an application could be brought for the McKenzie friend’s rights of audience to be rescinded.

In the current economic climate with the anticipated increase in litigants in person together with the cuts in legal aid it remains to be seen whether the courts will see an increase in the number of pseudo-professional McKenzie friends seeking to legally represent their clients.

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Recovery Of Contractual Costs In Residential Possession Proceedings

In light of the recent ruling in Forcelux v Binnie [2009] EWCA Civ 1077, it is worth looking at the mechanism for costs recovery in residential possession proceedings.

Under CPR Part 55 the amount of costs recoverable in undefended actions are ordinarily limited to fixed costs per r45.2A (commencement) and r45.4A (judgment). These fixed costs allow for very limited recovery and in cases with a single defendant amount to no more than £126.75 for issue of the claim and an order for possession.

Landlords can recover greater costs if the tenancy agreement contains an appropriate clause specifying that the tenants agree to indemnify the landlords in respect of all actions, claims and liabilities. These costs are payable pursuant to contract. ‘Contractually agreed costs' represent an exception to the fixed cost regime and are dealt with under r48.3 allowing the Court to assess contractually agreed costs either summarily or through the detailed procedure and will be allowed if reasonably incurred and reasonable in amount.

There had been some debate about whether the rules on contractually agreed costs applied to residential possession proceedings that would otherwise be subject to fixed costs. This issue was resolved by the Court of Appeal in Church Commissioners for England v Ibrahim [1997] 03 EG 136 where Roch LJ said:-

"The successful litigant's contractual rights to recover the costs of any proceedings to enforce his primary contractual rights is a highly relevant factor when it comes to making a costs order. He is not, in my view to be deprived of his contractual rights to costs where he has claimed them unless there is good reason to do so...The fact that this was a straightforward possession action was not such a reason".

Ibrahim established that recovery of contractually agreed costs should be the rule rather than the exception. The Court of Appeal further said that the landlord is entitled to costs on an indemnity basis if this is what was agreed with the tenant.

Forcelux, a defended possession claim not subject to fixed costs provisions determined that landlords who unsuccessfully pursued appeals against failed possession orders were not indemnified for full costs regardless of any contractually agreed position. This was partly due to the indemnity clause not being pleaded until after final judgment and, partly due to Forcelux's conduct in pursuing possession after Binnie had demonstrated an ability to pay arrears.

The principles established in Ibrahim in indemnifying contractual costs is still good law but to be of benefit a purposeful approach at every stage of tenant engagement is required. This involves:-

(a) Including an express provision within the tenancy agreement providing for indemnity costs;

(b) Referring to the right to costs pursuant to contract in any letters warning the tenant about breaches of the agreement, although not essential this shows that the landlord is giving fair notice of the tenant's legal obligations from an early stage;

(c) Double-checking the reasonableness (and costs consequences) of continuing litigation as the case unfolds; (d) Specifically pleading costs pursuant to contract in the Particulars of Claim and the prayer at the end;

(e) Taking a copy of Ibrahim to Court and asking for contractually agreed costs.

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