Daniel Nother (1994)

Private & Public Law Children

Care and adoption

Daniel is a specialist public law practitioner, representing local authorities, parents, children and interveners including hospital trusts. He regularly appears in High Court matters.

He has a particular interest in cases with a complex medical element and has appeared in many cases of alleged non-accidental injury and sexual abuse.

In adoption applications he has acted for applicants, respondents and children including in adoptions across borders.

Private law children

Daniel continues to appear regularly in child arrangement disputes (residence and contact) and other section 8 applications, accepting instructions on the direct public access basis where appropriate. He understands the stress and upset that such proceedings can causes and is able to give clear and firm yet sympathetic advice. He is sensitive to the challenges presented by cases where domestic abuse is a feature.

Child abduction and international movement of children

Daniel is well versed in the emergency procedures and practical measures applicable when a child is unlawfully retained or is taken out of the jurisdiction without the consent of both parents.

He has acted for both applicants and respondents in relocation cases, within the United Kingdom and worldwide.

Family Finances

Financial provision

Daniel regularly accepts instructions in cases involving all asset profiles. He has a particular interest in complex matters involving pensions, companies and asserted third party interests.

Tolata

Daniel has extensive experience of Tolata cases where an interest in property is asserted by a former partner or trustee in bankruptcy, where there is an issue over whether the property should be sold and the appropriate division of the proceeds of sale.

Children Act 1989 schedule 1

Frequently launched in response or together with a Tolata application, Daniel is experienced in advising on settlements for the benefit of the children of (usually) unmarried ex-partners, including cases involving children over 18 who are disabled or in education.

Personal Injury

Daniel advises, drafts pleadings and appears in all aspects of personal injury matters, including work-induced psychiatric damage and industrial deafness. He has a particular interest in cases with a complex medical element or conflict of expert opinion.

Court of Protection

Daniel appears regularly in Court of Protection proceedings.

Wills, Probate and Inheritance

Daniel is happy to assist with the drafting of wills and advise as to their effect. He has experience of advising on the distribution of the estate upon intestacy and on all aspects of the procedure.

Mediation

Daniel has been a qualified civil mediator since 2008.

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Re A-H (children) [2011] EWCA Civ 1044

Re M (a child) [2015] EWFC 71

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Contact With New-Born Babies In Care

On 15 April 2003, Munby J (as he then was) delivered his judgment in the case of Re M [2003] 2 FLR 171. He said at paragraph 44(iv) ‘If a baby is to be removed from his mother one would normally expect arrangements to be made by the local authority to facilitate contact on a regular and generous basis. ... Typically, if this is what the parents want, one will be looking to contact most days of the week and for lengthy periods. … Contact two or three times a week for a couple of hours a time is simply not enough if parents reasonably want more.’

Re M was a judicial review application by the parents to restrain the local authority from issuing public law proceedings in respect of their as yet unborn child.

Bodey J considered Re M in Kirklees Metropolitan District Council v S [2006] 1 FLR 333, a case involving a one-month-old baby. He noted that Munby J’s views cited above were obiter dicta and said at paragraph 32 that an order for daily contact to a child in care ‘is on any view (to put it at its lowest) exceptionally unusual’; each case would have to be looked at one is own particular merits. He added at paragraph 41 that the local authority should supply evidence in support of any contention that resources are relevant. Remitting the matter back to the Family Proceedings Court, he concluded at paragraph 42: ‘Unless rehabilitation can be seen as being likely in the near future, I would respectfully suggest that an order involving all or most weekdays, but not weekends (or at least not every Saturday and every Sunday) might be regarded as the appropriate way forward.’

There has been no further reported word on the subject from the higher courts.

Re M and Kirklees became routinely relied-upon by advocates for parents contending for extensive contact.

Then in 2009 Jenny Kenrick, a psychotherapist, published her paper ‘Concurrent planning: A retrospective study of the continuities and discontinuities of care and their impact on the development of infant and young children placed for adoption by the Coram Concurrent Planning project’ (2009) 33(4) Adoption and Fostering 5-18. She argued that over-regular contact was highly disruptive to infants who have an overriding need to form positive attachments with their foster carers; such children may already be disadvantaged by parental substance misuse in utero and/or abusive parenting during their very early lives. Regular, perhaps lengthy, journeys to and from contact with no consistency of staff accompanying the child on the journey or supervising the contact was disruptive and foster carers reported the effects.

At a President’s Debate in December 2010, Munby LJ (as he then was), echoed these concerns and said that the emphasis should be on the word ‘reasonably’ in the phrase ‘if parents reasonably want more’.

It has become common practice for local authorities to quote the Kenrick research in support of more limited levels of contact.

An Australian paper echoed Kenrick’s views (C Humphreys and M Kiraly, ‘High-frequency family contact: a road to nowhere for infants' (2011) 16(1) Child and Family Social Work 1–11) and argued that there was no correlation between frequency of contact and likelihood of an ultimate return home to natural parents.

Both the Kenrick and the Australian paper were criticised by Peter Dale in his 2011 paper ‘Restriction on natural parent contact with infants during care proceedings – some cautions about recent research and developing practice.’ Dale questioned the independence of Kenrick, the small scale of her research, the below-average rates of return to natural parents of the children considered and Kenrick’s focus on accounts from adoptors.

In July 2012 Martin Narey, then Ministerial Advisor on Adoption, issued on behalf of the Department of Education a ‘Call for Views: Review of Contact Arrangements for Children in Care’ with a closing date for responses of 31.8.12. (Embarrassingly, only one lawyer and one member of the judiciary responded.)

The Government has published its summary of feedback and response and proposed amendments to Children Act 1989 s.34 which appear in the Children and Families Bill 2012/13, expected to be passed in April 2014. The Secretary of State will be granted the power by regulations to make provision ‘as to what a local authority in England must have regard to in considering whether contact between a child and a [parent etc.] is consistent with safeguarding and promoting the child’s welfare.’

The resulting picture is confusing for the courts, lawyers and social workers. My experience, which I suspect matches those of other practitioners, is that two or three times per week is a not untypical level of contact; rather below the Kirklees anticipated levels.

The time is ripe for guidance from the Court of Appeal to consider law, academic research and practice on the ground and to set out fresh guidance.

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The Psychology Of Litigation

As a litigator, have you ever wondered why your claimant clients, with a good case, will walk away for a heavily discounted settlement while defendants will fight a hopeless case? For the sake of simplicity, this article ignores the quantum and burden of costs.

Assuming that £1,000 is a significant but not a life-changing sum for you, which of these two bets (‘the claimant’s choices’) do you prefer?

(a) A 90% chance to win £1,000, 10% chance to win nothing.

(b) £750 for sure.

The majority of people would choose the latter option, even though the mathematical value of the gamble in (a), £1,000 x 90% = £900, superior to the sure thing.

Again, assuming that you could lose £1,000 without facing ruin, how about these (‘the defendant’s choices’)?

(A) A 90% chance to lose £1,000, 10% chance to lose nothing.

(B) Lose £750 for sure.

This time, the majority of people would prefer the gamble. Faced with a significant loss, most people would take the 10% chance to avoid all loss, even though, on average, they would expect to be even worse off.

These preferences feel intuitive and unremarkable. People dislike losses more than they like gains and psychological research suggests that the ratio is about 2:1 - they like a gain of £2,000 about as much as they dislike a loss of £1,000.

This suggests that if you are a claimant with a 90% chance of winning your case with damages of £1,000, you would be likely to accept an offer from the defendant of £750. Conversely, as the defendant you would probably not wish to make the offer because you prefer to take the gamble. The result is a trial. The respective positions accord with the experience of lawyers in representing members of the public.

Defendants, perhaps to the discomfort of their lawyers, often prefer to fight on against the odds when a mathematically favourable settlement is on the table.

Now consider that you are offered the claimant’s choices (a) and (b), but that you get to gamble ten times. You would be much more likely to accept the gamble this time. Your expected gain for gambling each time is £900 x 10 = £9,000 as opposed to only £7,500 for taking the sure thing and the risk of coming away with less than £7,500 is very small. For identical reasons, you would probably take the certain loss each time faced with the defendant’s choices (A) and (B). The litigant with a series of choices is in the position of a professional used to litigation, for example an insurer, whose concern is to maximise gains or minimise losses over the long run and who will take the occasional hit with equanimity.

You can read more on this subject in the highly recommended book, ‘Thinking, fast and slow’ (2011) by Nobel Laureate in economics Daniel Kahneman.

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Unpaid Work For Breach Of A Contact Order

Until 8 December 2008, the only sanctions which could be imposed upon a recalcitrant resident parent for breach of a contact order were (a) a fine or imprisonment (suspended or immediate) for contempt of court, or (b) transfer of residence to the other parent. These are blunt tools which practitioners have found the courts reluctant to use.

On that date, the new sections 11I to 11N of the Children Act 1989, inserted by the Children and Adoption Act 2006, s1 came into force. This article concerns itself with the court's new power to order a party in breach to carry out unpaid work. Anecdotal evidence suggests that few unpaid work orders have so far been made. There are a few points for practitioners to note:-

(a) The provisions do not apply to shared residence orders - from an enforcement point of view one may therefore be better off with a contact order instead.

(b) If the new enforcement regime is to apply, the order must be expressed in the mandatory form of s8(1) (e.g. ‘A shall make the child x available for contact with B'). If this feels heavy-handed, there is probably nothing in principle to stop one from setting out the order in non-enforceable declaratory terms (e.g. ‘there shall be contact between x and B'). The more common alternative is to set out an agreed regime within the recital and the ‘no order' principle otherwise applies.

(c) There can be no enforcement without a warning notice (which should be attached by the court automatically under s11I, but do check) and the person said to be in breach has been given a copy of or otherwise notified of the consequences of breach: s11K. Consider personal service if in doubt.

(d) The court may only make an enforcement order if satisfied that there has been a failure to comply with the contact order and may not make an enforcement order if the resident parent can show a reasonable excuse: s11J. This may require a fact-finding hearing.

(e) The court needs to consider whether an enforcement order is a proportionate remedy: s11L.

(f ) The court must (i) ensure that there is local provision for unpaid work in the relevant geographical area: s11L(2); and (ii) have information about the person in breach and the likely effect of an enforcement order upon him: s11L(3)-(4). The court may request CAFCASS to provide it with this information and CAFCASS has a duty to respond: s11L(5)&(6).

(g) The number of hours of unpaid work must be between 40 and 200 and should be completed within 12 months (Schedule A1) subject to later revocation or amendment.

(h) The welfare of the child must be taken into account: s11L(7).

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Daniel Nother Published in the Family Law Magazine

Chambers is proud to announce that Daniel has been published in the June addition of International Family Law [2014] IFL 103. Daniel writes on the placement for adoption of children from the channel islands to England and Wales. For the full article please click here.

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