Justine has a thriving family practice where she is regularly instructed in cases involving long-term drug or alcohol dependency, domestic violence, mental illness and child abuse including non-accidental injury.
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Justine acts for local authorities, parents, children and grandparents in public law children matters. She has experience in emergency protection orders, care and supervision orders, adoption and secure accommodation orders.
In private law Children Act matters, Justine acts for parents and interveners e.g. grandparents or those joined to proceedings for the purpose of defending allegations of domestic violence or child abuse. Justine is regularly instructed in all types of section 8 Children Act applications and injunctions as well as committal hearings upon alleged breach. She has experience in applications for leave to permanently remove from jurisdiction, change of name and in cases where it is necessary for a 9.5 Guardian to be appointed due to implacable hostility or severe learning difficulties of a child.
A copy of Justine's privacy policy can be found here.
Justine Hayler is regulated by the Bar Standards Board, holds professional indemnity insurance with Bar Mutual and is VAT registered.
(2005) Middle Temple
LLB (Hons) (1st Class Honours), Southampton Institute
Family Law Bar Association
Western Circuit
This recent decision has highlighted a few issues for fact-finding hearings and "NAI". In this case a young child had suffered a head injury. At a fact-finding hearing the Judge found that the family were lying about the cause of the injury but could ...
In the current financial climate it is perhaps more important than ever to consider an application for costs in appropriate cases after a fact finding hearing has taken place. Of course it is well known that in proceedings brought under the Childr ...
Due to a change in the Family Proceedings Rules made by The Family Proceedings (Amendment) (No2) Rules 2009 [SI 2009 No857] duly accredited media representatives are now permitted to be present during family proceedings from 27 April 2009, with the C ...
This recent decision has highlighted a few issues for fact-finding hearings and "NAI". In this case a young child had suffered a head injury. At a fact-finding hearing the Judge found that the family were lying about the cause of the injury but could not find the injury was deliberately inflicted by the parents. The local authority had run their case solely on the basis of intentional infliction of injury. The local authority appealed. The appeal was dismissed.
A number of points are to be gleaned from this decision.
The term "non-accidental injury" is a tautology. An accident is something unexpected and unintentional, whereas injury involves an element of wrong, as such it may encompass negligence, recklessness or deliberate infliction. Whilst it may be helpful to be able to distinguish deliberate harm from, say negligence, such distinction is not necessary to consider whether the threshold criteria are satisfied. It is therefore clearer to focus on the statutory requirements.
Care needs to be taken by the Local Authority when putting the case to the Court so that they do not unintentionally limit their case to one potential scenario, as if the realm of potential causes is not explored with expert witnesses the Court may find "a piece of the jigsaw missing" when considering the case in the round.
Fact-finding hearings should only take place in cases where there is a stark and discrete issue which once determined would lead to an early final determination of the proceedings. Where there are other welfare or care issues which will need further determination by the Court there should not be a split hearing even if this would not effect the timetable of the case. If the Court does not hear evidence on the background circumstances to be able to put the allegations in context, such as capability, risk and factors which relate to the credibility of witnesses, it is deprived of "the very material (i.e. secondary facts) upon which findings as to primary fact and social welfare context are often based and tends to undermine the safety of the findings thereby made". The passage of time from the split hearing to the final hearing may also effect the welfare assessment due to memories of the evidence fading and circumstances moving on.
Allegations do not need to be determined by the Court before any social care assessment can be undertaken as such assessment may set out what risks there may be in each of the potential factual scenarios.
The decision in Re S relates to public law proceedings and does not affect private law children cases within which fact-finding hearings are still to be considered in accordance with the guidance provided In the matter of C (Children) [2009] EWCA Civ 994 and the new practice direction 12j (dated April 2014).
Please note any article published on this website is not intended as legal advice and is to be considered to represent the opinions of the author at the time of publishing only. If you require legal advice, you are encouraged to contact a solicitor, complete the Direct Access Questionnaire or complete our âContact Usâ form.
OKIn the current financial climate it is perhaps more important than ever to consider an application for costs in appropriate cases after a fact finding hearing has taken place.
Of course it is well known that in proceedings brought under the Children Act 1989 it is rare for an order for costs to be made due to a general proposition of no order as to costs. This general proposition is due to the "...Court not wanting the spectre of an order for costs to discourage those with a proper interest in the child from participating or reducing the chances of a parties co-operation around the future life of the child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them. The proposition applies in its fullest form to proceedings between parents and other relations; but it also applies to proceedings to which a local authority is a party... But this proposition does not apply where, for example, the conduct of a party has been reprehensible or beyond the band of what is reasonable." As held in the case of London Borough of Sutton v Davis (Costs) (No 2) [1994] 2 FLR 569.
However, the decision in J (Children) [2009] EWCA Civ 1350, suggested an exception to the general proposition stated in Davis in relation to bespoke fact-finding hearings.
Where a separate fact-finding hearing has been deemed necessary to determine whether and to what extent allegations made by one party against another party are true, the fact-finding hearing is distinct from the issue of costs in the general application itself, whether this be for residence, contact or indeed care proceedings. Therefore, there is, "...in that sense, a ring fence around that hearing and thus around the costs referable to it".
The court should consider the nature, seriousness and relevance of the allegations; the extent to which they were admitted and beyond that which is admitted, the extent to which they have been found proved.
The issue of costs in a fact-finding hearing in care proceedings was considered recently in T (A Child) [2010] EWCA Civ 1585. In that case grandparents had incurred considerable expense in successfully defending allegations of sexual abuse brought by the local authority. Lord Justice Wilson considered that "...where in care proceedings a local authority raise, however appropriately, very serious factual allegations against a parent or other party and at the end of the fact-finding hearing the Judge concludes that they have not established them, the general proposition is not in play." This does not mean costs will automatically be made as the rule of costs following the event does not apply either. The Judge should start with a clean sheet. Lord Justice Wilson reiterated his argument in Baker v Rowe [2009] EWCA Civ 1162, that "...even where the judge starts with a clean sheet, the fact that one party has been unsuccessful, and must therefore usually be regarded as responsible for the generation of the successful party's costs, will often properly count as the decisive factor in the exercise of the judge's discretion."
He considered that in T (A Child) the "...facts that the grandparents were faced with allegations of the utmost severity, that accordingly it had been reasonable for them to stretch their economy to the utmost in order to secure for themselves a professional defence against them and that in the event the result was an exoneration, were all matters which should have been of great, indeed...decisive, importance to a judge who was about to write on a clean sheet."
Please note any article published on this website is not intended as legal advice and is to be considered to represent the opinions of the author at the time of publishing only. If you require legal advice, you are encouraged to contact a solicitor, complete the Direct Access Questionnaire or complete our âContact Usâ form.
OKDue to a change in the Family Proceedings Rules made by The Family Proceedings (Amendment) (No2) Rules 2009 [SI 2009 No857] duly accredited media representatives are now permitted to be present during family proceedings from 27 April 2009, with the Court retaining a discretion to exclude them on specified grounds.
A card issued under the UK Press Card Authority is the expected form of identification to prove accreditation; however, a media representative without such identification may still be present at the Court's discretion.
There is an express exception to media attendance for hearings conducted for the purpose of judicially assisted conciliation or negotiation for example an FDR or First Appointment in private law Children Act cases, in Rule 10.28(1) (County Court and High Court) and Rule 16A(2) (Family Proceedings Courts).
The Court may use its discretion to exclude the media where necessary "for the orderly conduct of proceedings" including the practical considerations of the court layout. The media may also be excluded where justice will be impeded or prejudiced, for example, where a witness (who is not a party) gives a credible reason for refusing to give evidence in front of the media or there is a significant risk that their evidence will not be full and frank in the presence of the media. If a media representative is present, they have a right to make representations upon an application to exclude them, but there is no provision for an adjournment for the media to make representations if they are not already present.
Importantly, the new rules do not entitle the media to receive or peruse court documents, even those referred to in the hearing unless the Court permits this or under the rules of disclosure to third parties. The restriction on publication of information in private proceedings under s12 Administration of Justice Act 1960, continue to apply as does the prohibition on publishing material intended to or likely to identify a child as being involved in proceedings in s97(2), Children Act 1989. The Court should also be live to considering protection to extend beyond the end of the proceedings on child welfare grounds.
It is clear that this is the first step of the Government's planned programme. Jack Straw has announced that further primary legislation will follow to bring the rules in-line with those operating in the Youth Courts, in criminal proceedings.
Please note any article published on this website is not intended as legal advice and is to be considered to represent the opinions of the author at the time of publishing only. If you require legal advice, you are encouraged to contact a solicitor, complete the Direct Access Questionnaire or complete our âContact Usâ form.
OKI just wanted to say a few words of thanks to Justine Hayler. She represented me in a very tricky international child and family law case. Justine was incredibly thorough with her research of previous cases, was able to advise on the best way forward for both me and my daughter. She was so professional throughout, but also kind and understanding when the going got tough. Justine was cool, calm, and collected through the case in the High Court and presented eloquently to the Judge my case. I could not have asked for better. I thoroughly recommend Justine for child and family cases that have an international element. I know if I ever need a barrister again who I will be calling. Thank you Justine.
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