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Maternity leave: a fair deal for returning mothers?

Administrator 1 : September 2, 2014 9:49 am : Blog, Featured, Human Rights

Six out of ten mothers think their careers were “derailed” and they faced open discrimination after becoming pregnant, new research by Slater & Gordon has revealed.

What laws are already in place to protect mothers returning to the workplace?

A mother who returns to work at the end of, or within her ordinary maternity leave period (the first 26 weeks), has the right to return to the same job that she was employed in before her absence. She has the right to return on the same terms and conditions of employment, or terms that are no less favourable.

A mother returning to work from additional maternity leave again has the right to return to the same job unless there is some reason, other than redundancy, why it is not reasonably practicable for her employer to allow her back to that job. She is then entitled to return to a different job that is both suitable and appropriate in the circumstances and on no less favourable terms. This covers, for example, a business reorganisation in the interim.

If a redundancy situation arises during the maternity leave period, the employee is entitled to be offered a suitable alternative vacancy (if one is available) again on terms and conditions that are not substantially less favourable than she had before. This is a key right which gives women on maternity leave priority over other workers who are also at risk of redundancy.

In general it is unlawful for an employer to dismiss or otherwise treat a female employee unfavourably during her pregnancy and maternity leave period because of her pregnancy or because of a pregnancy-related illness. It is also unlawful for an employer to dismiss or otherwise treat a female employee unfavourably because she is exercising, or has exercised, her right to take maternity leave.

Why do you think these laws are failing to protect mothers from discrimination?

There are likely to be a multitude of factors at play including:

  • mothers not understanding what their legal entitlements and rights are;
  • in some cases employers not understanding, or not implementing, their legal obligations – the classic example would be the failure to prioritise mothers on maternity leave for suitable alternative vacancies that may arise if there is a redundancy situation;
  • mothers being fearful that if they challenge discriminatory behaviour it will only get worse for them, they will lose their job or it will have a long-lasting impact on their whole future career;
  • financial pressures – maternity leave can be a financial struggle and therefore mothers are focusing on their immediate financial needs when they return to work and their need for a secure regular income;
  • employment tribunal fees – can mothers who are on reduced or no pay on maternity leave, or who are paying expensive childcare on their return to work, financially afford to bring a claim?
  • emotional pressures – becoming a new parent can be an exciting but daunting and life changing experience and some mothers may not wish to take on added pressures of challenging their employers at a particularly vulnerable stage in their own life.

Discrimination cases can sometimes be difficult cases to win, as not all discrimination is obvious and overt. It can be a significant task to amass the evidence needed to convince an employment tribunal that the unfavourable treatment that occurred was because of pregnancy or maternity. This can be even more so when the unfavourable treatment is potentially affecting a mother’s career development long after she returned from maternity leave.

What are the current trends in maternity discrimination cases?

Our research focusing on working mothers showed that:

  • one in four mothers who have returned to work believe they have been discriminated against, either before or after the birth of their child;
  • nearly half of working mothers felt having children halted their career progression;
  • 42% or mothers felt that younger and childless people were prioritised in the workplace;
  • one in four have been made to feel they’re no longer required in their current workplace;
  • 25% have been pressured to leave their position or reduce their role.

Similarly our research focused on employers found that:

  • 40% said they were wary of hiring women of childbearing age;
  • more than 40% said they would think twice before hiring a mother for a senior role;
  • almost a third of managers claimed women are not as good at their jobs when they come back from maternity leave because of family distractions;
  • a third of managers admitted they would hire a man in his 20s or 30s over a woman of the same age for fear of maternity leave.

Are the numbers of discrimination claims decreasing as sexist attitudes are broken down?

To the contrary, pregnancy and maternity discrimination seems to remain rife and it appears to have a significant long-term impact on working mothers’ future career progression.

Statistically the numbers of pregnancy or maternity discrimination claims resulting in formal employment tribunal proceedings being brought may be decreasing. But this has to be set in the context of all employment tribunal claim numbers dropping significantly because of the impact of employment tribunal fees. Indeed, given the financial pressures faced by women on maternity leave, the barrier placed by tribunal fees on their ability to bring proceedings is likely to be even greater. If claim numbers are falling then, given the findings of our research, it is more likely that this is a result of factors such as the introduction of employment tribunal fees rather than us having yet cracked the problem of discriminatory attitudes to working mothers.

How can the government combat maternity discrimination?

The government could try and combat maternity discrimination by:

  • reducing or removing employment tribunal fees, at least in pregnancy and maternity discrimination cases;
  • providing all mothers with an advice pack about their pregnancy and maternity rights and protections or require their employers to do so;
  • extending the express protection against unfavourable treatment on grounds of pregnancy/maternity/pregnancy-related sickness so it lasts longer than the existing “protected period” –this would cover the time when a mother is pregnant or on maternity leave as well as the period after her return to work.

We also have to be hopeful that the recent extension of flexible working requests to all workers, and the concept of shared maternity leave and pay being introduced by the government will help with a cultural shift towards fathers being seen as equal care givers. In turn it is hoped this will change the outdated views of some employers.

How does the issue relate to fathers returning to work after paternity leave?

In our research, employers seemed most comfortable hiring men in their 20s or 30s. The thought they may be fathers and take paternity leave therefore does not seem to have the same impact on employer attitudes as women taking maternity leave. Currently the right to take paternity leave is far more limited when compared with maternity leave rights. As set out above, the government is intending in 2015 to introduce a concept of shared parental leave.

What are your predictions for the future?

It was reported recently it will take another 60 years for the gender pay gap to be closed and for women to earn the same as men. I would hope it will not take that long to change these endemic attitudes to working mothers. In truth I suspect we all personally see many dedicated fathers and partners who contribute equally to caring for their families. If we can speed up the pace of that cultural shift by changing workplaces and giving fathers the access to equal parental rights at work then I believe we are making the right progress.

Rachel Harfield is a senior employment lawyer at Slater & Gordon LLP (Interviewed by Rachel Moloney).

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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Threat from Syria – will recent proposals help combat terrorism?

Administrator 1 : September 1, 2014 11:34 am : Blog, Criminal, Headline

By Dan Bunting

When the Prevention of Terrorism Act 1974 was passed against a backdrop of an IRA bombing campaign in the mainland UK, it was limited in time for a year (although would be re-passed annually until made permanent), and was passed among a genuine concern that the powers it gave were too wide-reaching. Roy Jenkins, taking the Bill through the House of Commons as Home Secretary, said “The powers… are Draconian. In combination they are unprecedented in peacetime”. One wonders what he and other legislators from 40 years ago would make of our discussions today.

Since 2000 we have had the Terrorism Act 2000, Anti-Terrorism Crime and Security Act 2001, Prevention of Terrorism Act 2005, Terrorism Act 2006 and the Counter-Terrorism Act 2008. And that’s just the statutes with “terrorism” in the title (not counting the Terrorism (Northern Ireland) Act 2006 and the Terrorist Asset-Freezing (Temporary Provisions) Act 2010). There are a whole host of actions that these criminalise, both here and abroad, that make the 1974 Act look positively benign.

But, while some ask if this is all too much, others, it would seem, want more laws. Boris Johnson popped up this week to give us the benefits of his thoughts on the law as it relates to terror suspects. In what seemed quite a populist announcement, he proposed a reversal of the burden of proof.

It is surprising to hear a Tory, particularly one who seemed to be a bit of an old-school liberal, calling for more legislation, especially such extreme measures as reversing the burden of proof. He suggests that any persons who travel to Syria should be “automatically presumed to be terrorists unless they had notified the authorities in advance” and they can prove otherwise.

This would expose individuals to a potential life sentence (depending on how the offence is charged) unless they can prove they are innocent. On a side note, this is unlikely to survive a challenge under the Art 6 ECHR in the domestic courts. Cynically, it could be said that the politicians are aware of this, but it will be more grist to the euro-sceptic mill.

But it wasn’t just “BoJo”. On 29 August 2014, David Cameron said: “It is becoming clear that there are some gaps in our armoury and we need to strengthen them. We need to do more to stop people travelling, to stop those who do go from returning and to deal decisively with those who are already here”.

If it ain’t broke, don’t fix it, or so the saying goes. Is the Prime Minister right here? Is there anything to say that the current web of anti-terrorism legislation that we have is inadequate? It is hard to see how. It could certainly benefit (as could the rest of the criminal law) from a considered overhaul with a view to make it coherent, consistent and sensible, but this is not what he is calling for here.

Certainly in relation to people who are in the UK, it is hard to see what other forms of criminalisation of domestic activity is needed. In relation to further travel restrictions (there are already some in place), we have yet to see any concrete proposals, and it may be that this is pre-election puff that fades away. Or, perhaps more likely, a watered down version makes it in to a Bill.

Most of Parliament still has (at the moment at least) enough respect for international law to mean that stripping British born people of their nationality is not viable. At the moment, the Home Secretary can strip a naturalised British resident of their citizenship if their presence in the UK is “not conducive to the public good”, but not if this renders them stateless. This has been extended under s 66 Immigration Act 2014 (not yet in force) to any naturalised Britain, provided that she has “reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory”.

This was controversial when passed, and it is to be expected that any attempt to widen it (as was proposed by David Davies) is bound to fail. Tony Blair proposed confiscation of passports in 2005, and it still hasn’t happened. Again, this may be down to legal problems that this would present.

Nobody can deny the threat that is presented by terrorism is a real one. There is a real concern, however, as to whether all the matters that we have seen, and are proposed, are effective at combating terrorism. This is before you consider the potential costs on civil liberties and community relations. It remains to be seen whether any of what has been floated makes it on to the Parliamentary table.

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Domestic abuse: how to tackle non-violent control

Administrator 1 : August 29, 2014 10:21 am : Blog, Criminal, Headline

Those who abuse their partners through coercive and controlling behaviour, such as depriving them of money, could face prison under a proposed new offence. The government is seeking views on whether a specific, non-violent domestic abuse offence will help tackle the problem by making police take the crime more seriously and showing perpetrators and victims of abuse that such behaviour is wrong. Comments on the proposal are requested by 15 October 2014.

What is the rationale behind the proposed creation of this new offence?

There is currently no offence of domestic violence. The government definition is very good after having been updated in March 2013 and includes emotional abuse and coercive control.

However, the police do not yet have the tools in the form of legislation to bring charges. The criminal law does not currently legislate against emotional abuse and coercive control. The only possible way to charge someone with domestic violence would be under common assault legislation, which requires a psychiatric injury rather than a psychological injury and is difficult to prove. The harassment and stalking legislation could be used in theory. However, it rarely is.

I have been part of the campaign group for this as I am also a director at Paladin, the National Stalking Advocacy Service which, along with Women’s Aid and the Sara Charlton Charitable Foundation, has been lobbying the government. I see clients everyday who tell me that emotional abuse and coercive control is worse than physical violence as the effects last far longer, and it is the psychological abuse which breaks down their confidence and makes it difficult to leave a relationship once it becomes violent.

Clients report incidents to the police and are told, “Come back when he hits you”, which is unacceptable. Two women a week are murdered due to domestic violence, and domestic violence costs the UK over £23bn per year and is witnessed by over 750,000 children.

Have there been difficulties in charging abusive partners under existing legislation?

The only case I am aware of is the Justin Lee Collins case, where the TV comedian was sentenced to 140 hours of unpaid work after being found guilty of harassing his former partner and “causing fear of violence”.

There are, however, several examples of cases thrown out by judges due to the fact that the parties were still in a relationship at the time of the abuse and therefore it could not be considered harassment. This means the behaviour would be classed as harassment or stalking only after separation, but not during the relationship, which is nonsensical and puts victims at risk.

It is essential that emotional abuse is specifically outlawed as it sends a strong message to perpetrators and also to victims – many of whom still think it is something that they have to put up with, especially when they are dismissed by the police. Once victims have lost confidence in the police they are far less likely to report abuse, even when it becomes physically violent.

I have clients who are timed when they go to the shop; have pictures taken of them whilst naked and then threatened with exposure on the internet if they don’t do what they are told (revenge porn); have trackers placed on their phones and cars; have become isolated from friends and family; have been forced to steal sanitary products because their abuser has taken all of their money; have been told what to wear; who to speak to; made to sleep on the floor; locked outside the house for hours in the snow; made to eat meals from a dog bowl on the floor. None of this can be prosecuted under current legislation.

What is being proposed?

The proposal is to create a specific offence of emotional abuse or coercive control. This would be based on the stalking and harassment legislation and require ‘a course of conduct’ of at least two offences. This would then get to the essence of domestic violence, which is that it is never an isolated incident but a pattern of behaviour. One of the current problems in prosecuting physical offences is that they are treated as individual acts, which masks the cumulative effect on the victim of the intimate terrorism that is domestic violence.

Are there any other jurisdictions that criminalise non-violent abuse? How has this worked in practice?

The US government criminalised domestic violence in the Violence Against Women Act 1994, which over the following 10 years led to a 67% reduction in domestic violence and an increase in reporting. However, this deals only with physical abuse, not emotional.

However, several countries, including France, Spain, Sweden, Portugal, Canada and Tasmania, have legislation which makes emotional abuse or coercive control a criminal offence.

Do you envisage any issues with the latest proposals?

The only issue I can see with the proposals is that it needs to go hand-in-hand with training for the police, CPS and judiciary – many of whom still have outdated views regarding domestic abuse. The stalking legislation is still massively under-used and it is therefore essential that training is provided.

Some have expressed the opinion that the proposals will criminalise arguments and that criminal law has no place in the home. This is old-fashioned, dangerous thinking that has allowed domestic violence and child abuse to flourish. There would need to be at least two incidents before the CPS would be able to prosecute – this would demonstrate the course of conduct, as in cases of stalking – and it would need to be objectively clear that the perpetrator ought to have known that their actions would cause distress or intimidation.

As for issues around evidence, it is the same as for stalking cases or sexual offences. Increasingly, it is easier to secure evidence as a woman may be being bombarded with abuse via text or social media, trackers can be found, verbal abuse can be recorded by phones, bank statements may show transfers of her money as soon as it is received, etc.

Rachel Horman is a solicitor and head of the domestic violence and forced marriage division of the family department at Watson Ramsbottom. She is an advanced Resolution accredited specialist in the areas of domestic violence and forced marriage, areas in which she has specialised for over 15 years, and sits on two All Party Parliamentary Groups for Stalking and Harassment and Domestic Violence. She also joined the board of Paladin, the National Stalking Advocacy service, in 2014. (Interviewed by Jane Crinnion.)

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

First published on Lexis®PSL.

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Are surrogates and parents losing out due to a lack of global surrogacy laws?

Administrator 1 : August 28, 2014 11:53 am : Blog, Family, Headline

A Thai surrogate mother, C, gave birth to twins on behalf of Australian nationals D and WF in an arrangement where C was paid £9,000. When one of the twins, G, was born with Down’s syndrome, C alleged that D and WF abandoned the baby boy, taking only the healthy sister back to Australia. D and WF deny this.

How has this recent story ignited the debate on international surrogacy?

It has raised questions over the morality of surrogacy in third world destinations and the legal status of all involved. This has sparked a debate about whether there should be an international treaty on surrogacy in order to ensure that children conceived in this way are protected by a proper legal framework and that parents and surrogates know where they stand from the outset.

What are the key concerns and challenges surrounding international surrogacy?

On the legal side the concerns are that each destination applies its own rules leading to conflicts on issues such as who the parents of children conceived through surrogacy are. On the ethical side there are concerns that surrogates from overseas are being exploited by a culture of “baby buying” in order to escape poverty. The challenge for parents is to navigate the different systems of law and ensure that they are as protected as far as possible in each applicable destination. This often involves two separate legal processes in the foreign destination and in the UK.

There is also a distinct lack of regulation in destinations such as Thailand and India, so parents can be faced with challenges when it comes to ensuring their fertility treatment is dealt with responsibly. For instance in the UK, everyone is subject to adequate screening and testing. In terms of commerciality we advise parents to ensure, as far as possible that:

• their surrogate is doing this for the right reason (ie because she is keen to help a family and not because she has no other choice)

• she is fully informed before going ahead

• she has entered into the arrangement of her own will

• has her own family, and ideally

• she has had psychological screening and counselling before having been approved as a surrogate

How are the rules governing international surrogacy currently structured?

In the UK there aren’t specific rules surrounding surrogacy. As such, the laws as they exist are a poor fit leading to post-birth court processes in order to resolve the position. On a global level there is no harmonisation, with each destination having its own rules ranging from prohibiting surrogacy altogether, to having no established regulation or rules either supporting or preventing surrogacy. This leaves parents who wish to travel abroad for surrogacy open to many pitfalls (including conflicting rules about their status as parents and whether they can get a passport for their child to travel home on). Internationally there is currently no structure.

Are there greater calls for clarity in the global approach to surrogacy?

Yes, and cases like that of G have highlighted further the need to have a clear framework in place, especially to protect children born this way. Although situations like the recent Thai surrogacy case are rare, there is a desperate need for a structure so potential parents can ascertain whether they will be afforded the legal protection they need before they choose a surrogacy destination. There is no doubt this will be challenging to design, given the wide legal, moral and ethical disparity that exists globally about the issue of surrogacy. However, countries that are amenable to surrogacy and its safe practice could sign up to an international treaty which would enable parents to have a clear idea from the outset about which destinations are regulated and ‘tested’ before going ahead.

What are the potential areas that could be reformed?

A uniform and internationally recognised set of rules that govern who the parents of children conceived through surrogacy are, and a process through which parents and surrogates can establish this are both areas of potential reform. Fertility treatment and the associated regulation of this is another area which differs globally – the UK has strict rules about issues such as testing, egg and sperm donor identifiability and the number of embryos which are transferred. Parents and surrogates travelling abroad for treatment are often not protected by the level of regulation which exists in the UK. A global system of rules could therefore be favourable.

Nicola Scott from Natalie Gamble Associates, a UK firm specialising in fertility and parenting law, Interviewed by Jo Edwards.

The views expressed by our legal analysis interviewees are not necessarily those of the proprietor.

First published on Lexis®PSL.

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Victims’ right to review – could it affect the criminal justice system?

Administrator 1 : August 28, 2014 10:55 am : Blog, Criminal, Headline, Legal Profession & Courts

Several criminals have been found guilty after victims of crime successfully appealed against the CPS’ original decisions not to bring charges. What has been the effect of the introduction of the “right to review scheme”? And could it affect the criminal justice system?

What have been the consequences of the introduction of the CPS’ right to review scheme?

According to the BBC, 146 suspects have so far been charged with offences after their alleged victims appealed against decisions not to prosecute, including 80 cases of violence and 27 involving alleged sexual offences.

This is the consequence of what is known as the “right to review scheme” brought in by the CPS last year, which (in the words of the CPS) “makes it easier for victims to seek a review of its decision not to bring charges or to terminate all proceedings”.

The scheme follows from a ruling by the Court of Appeal in R v Killick that considered the right of a victim of crime to seek a review of a CPS decision not to prosecute. In that case, the court held that victims have a right to seek a review and should not have to rely on judicial review. The court also held that the right to review needed clearer procedure and guidance as to time limits.

The concern for defence lawyers and those specialising in criminal appeals is that we are living through another “rebalancing” of our criminal justice system in favour of the rights of victims and moving away from the rights and protections afforded to defendants.

How does the scheme operate?

Victims can request a review of decisions not to charge, to discontinue or otherwise terminate all proceedings. A revised victims’ code came into effect at the end of last year. On a request for review, the earlier decision is checked by a prosecutor who has not been involved with the case before and an explanation of the decision is then sent to that person. Apparently this will be completed within ten days of receipt of the request for review.

What can be drawn from the increased number of reviews?

According to the BBC, in the period after the introduction of the scheme in June 2013 and this March, some 1,186 appeals were lodged, of which 162 were upheld. This represented a success rate of almost 14%. Alison Saunders said it was “reassuring” so few cases had been overturned but the figures strike me as being rather high. Before drawing any conclusions, we really need to better understand the reasons why those cases are being overturned.

Are there wider concerns around the charging decisions from the CPS?

As the scheme settles down, a concern I have is that this is tokenism. It is about paying lip service to the concerns of victims, and, at worst, cruelly raising their expectations. I’m mindful of victim impact statements and the recent furore over the judge who apparently stated such statements made by bereaved families made “no difference”.

How can lawyers assist clients in navigating the review system?

By making sure that they are realistic – don’t have inflated expectations.

Glyn Maddocks, is a consultant at South Wales firm Gabb & Co, who has worked on wrongful conviction cases for over 20 years. He is the founding Trustee and Board Chair of the new Centre for Criminal Appeals. Interviewed by Jon Robins.

The views expressed by our legal analysis interviewees are not necessarily those of the proprietor.

First published on Lexis®PSL.

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What’s in store for family migrants after the Court of Appeal decision in MM?

Administrator 1 : August 19, 2014 1:01 pm : Blog, Headline

By Kathryn Denyer

Since 28 July the Home Office has resumed processing applications that were on hold pending the Court of Appeal decision in MM. In that case, the Court of Appeal held the minimum income threshold and associated documentary requirements set out in Appendix FM and Appendix FM-SE to the Immigration Rules to be lawful.

It is no coincidence that processing re-commenced on this date, which was also when s 19 of the Immigration Act 2014 came into effect. Section 19 sets out into primary legislation the public interest considerations that a court or tribunal must take into account when considering whether a decision under the Immigration Acts breaches the right to respect for private and family life under Art 8 of the European Convention on Human Rights.

The public interest considerations include that:

  • the maintenance of effective immigration controls is in the public interest;
  • it is in the public interest, particularly in the interests of the UK’s economic well-being, for migrants to speak English and be financially independent;
  • little weight should be given to a private life or relationship formed with a British citizen or settled person if it was established at a time when the migrant is in the UK unlawfully;
  • little weight should be given to a private life if it is established at a time when the migrant’s immigration status is precarious (which is defined in guidance to include having limited leave, having leave that was obtained fraudulently and during any period after notification of liability to deportation or administrative removal);
  • it is not in the public interest for a migrant who is not liable to deportation to be removed from the UK when they have a genuine and subsisting parental relationship with a child who is a British citizen or who has lived in the UK continuously for at least seven years, and it is not reasonable to expect that child to leave the UK.

The Immigration Rules have also been amended to “clarify” that the rules for family members under Appendix FM have been framed to reflect public interest considerations.

The public interest considerations will now have to be taken into account in any appeal against a decision to refuse leave in all of the cases that were previously held pending the MM decision.

Although the claimants in MM may seek leave to appeal to the Supreme Court, continuing the legal challenge would be a lengthy process.

The relevant primary legislation has also now moved on and will need to be considered by the judiciary. Appeals against refusal decisions in the previously held cases will take time to proceed through the tribunal and higher courts, leaving the future uncertain for affected families in the meantime and burdening them with the costs of litigation.

Irrespective of their legality, the very onerous financial requirements of Appendix FM and Appendix FM-SE are far less acceptable to the British public than other measures introduced by the current government in an effort to reduce net migration to the “tens of thousands”. Political campaigning against the current family immigration rules has been persistent and has attracted favourable media attention. Political pressure also continues to be applied to individual MPs.

Interestingly, David Cameron announced in a speech on 18 August 2014 that from this October, all government policies must pass a “family test” and that all policies that fail to support family life will not go ahead. It remains to be seen what, if any, effect this will have on the development of family immigration policy.

As the first partners and children who were granted leave go on to make extension applications in 2015, and indefinite leave applications in 2017, some will fall foul of the minimum financial threshold, perhaps because of diminished earnings due to caring for a child or other family member, or due to injury or illness. These people will either be forced to leave the UK, or be expected to remain under the “precarious” immigration status of temporary migrant for ten years instead of five. Those who are eligible to be sponsoring partners but who cannot meet the minimum financial threshold will also continue to form family relationships abroad with partners who are non-EEA nationals, or in the UK with non-EEA nationals who have limited leave status. It therefore seems likely that the political pressure against the requirement will increase over time rather than abating. Perhaps a future government (or even the current one) will consider the minimum financial threshold too politically expensive to maintain.

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Victims of trafficking empowered to seek compensation

Administrator 1 : August 13, 2014 7:38 am : Blog, Criminal, Featured, Human Rights

Hounga v Allen and another

The employee had been allegedly trafficked from Nigeria to the UK by the employer to work illegally as an au pair. The Court of Appeal, Civil Division, set aside an award of compensation granted in the employee’s favour for unlawful discrimination in relation to her dismissal by the employer, having held that the illegality of the contract of employment had formed a material part of the employee’s complaint and that to uphold it would be to condone the illegality. The employee appealed.

The Supreme Court, allowing the appeal, held that it would be a breach of the UK’s international obligations under the Council of Europe Convention on Action against Trafficking in Human Beings for its law to cause the employee’s complaint to be defeated by the defence of illegality. The case was remitted to the tribunal in respect of a complaint in relation to pre-dismissal harassment.

What key issues did the case raise?

The case focused on two key questions:

  1. To what extent does participation in illegality prevent a party from recovering against a defendant or respondent?
  2. What effect do the UK’s international obligations have on the rights of victims of human trafficking before the UK courts and tribunals?

To what extent did the Supreme Court clarify the law in this area?

The court unanimously held that the defendant could not take advantage of the illegality defence, and that the appellant’s race discrimination complaint could proceed, notwithstanding that she was illegally employed. The reason was that there was no “inextricable link” between the illegality and the claim – the illegal employment did no more than provide the context in which the discrimination occurred.

The majority (by way of Lord Wilson’s judgment) held that the illegality defence is founded upon public policy. A court faced with an illegality defence should consider the public policy as to whether the illegality defence should apply on the particular facts of the case. It should then consider the public policy implications of preventing the claimant bringing their claim on the particular facts of the case. In effect, tribunals and courts should carry out a balancing exercise in respect of public policy. Public policy should be considered in the context of the integrity of the legal system and the court condoning any illegality.

In respect of the law on human trafficking, this was the first judgment by the Supreme Court to consider trafficking and will accordingly be highly influential. By a majority, the court held that the illegality defence could not succeed as victims of human trafficking must have a right to compensation for discrimination in accordance with the UK’s international obligations regarding trafficking, in particular the Council of Europe Convention on Trafficking.

Are there any potential legal loopholes or grey areas remaining?

It seems likely that cases involving the illegality defence will continue to turn on the facts. The facts in Hounga were extreme. The defendant trafficked the appellant, who was a child, and subjected her to serious physical abuse – the appellant was a victim of serious crime.

Apart from the “inextricable link” test and the balancing of public policy, the majority judgment also raises other factors such as the degree of culpability. It is unclear how much tribunals and courts will bring these factors into account.

It should be noted that the minority judgment (of Lord Hughes), while agreeing that there was no inextricable link, took a different approach in general terms on illegality. There was no consideration of a balance of public policy considerations. Lord Hughes’ judgment concentrated on a claimant’s conduct. Although only a minority judgment, it remains to be seen if it will have any influence.

The law on human trafficking is fast developing. For instance, both judgments expressly referenced the current draft of the Modern Slavery Bill. It is unclear as to the extent to which our current law provides protection to victims and the extent to which they need to rely on international obligations.

What are the difficulties for lawyers in complex cases such as this?

There remain considerable, although not insurmountable, difficulties in cases for victims of trafficking. Victims are usually vulnerable with little knowledge of the English language, culture and legal process. In Hounga the victim had excellent support from various statutory and non-governmental organisations. This is not always available.

Further, the courts and tribunals, with some notable exceptions, are not accustomed to these claims. Our legal system can be inflexible in dealing with child litigants.

Although the UK is required to provide legal aid to victims of trafficking under its international obligations and legislation expressly provides for this, victims often experience unusual difficulty in accessing legal aid.

The question of how race discrimination affects such claims has been considered by the Court of Appeal in Onu v Akwiwu; Taiwo v Olaigbe – an application for permission to appeal is currently before the Supreme Court.

It should be noted that it took six years and the involvement of the Supreme Court before a child victim of human trafficking (who had learning difficulties) was permitted to bring a claim against the trafficker who had seriously abused her. The reasons for this were complex –however, the risk is that the current preoccupation with immigration is overshadowing the key legal issues in trafficking cases.

What should lawyers take from the case and be advising clients as a consequence?

Lord Wilson’s judgment is worth reading in detail on the exact approach in illegality cases. The effect on the law on illegality should extend well beyond human trafficking and, indeed, employment law.

In respect of the law on human trafficking we have Supreme Court authority that an individual victim can rely on the UK’s international obligations. This includes but is by no means limited to race discrimination – there are many other claims brought by victims against traffickers and the state. This case is relevant to all cases relating to trafficking including criminal, housing, immigration and public law.

Are there any discernible trends in this area and what are your predictions for future development?

Human trafficking law and practice has developed greatly since 2009 when the claimant was first recognised as a victim and the case was issued at the employment tribunal.

Many successful claims have since been brought for victims in the employment tribunal and considerable compensation obtained. However, there have been difficulties in respect of the scope of race discrimination law.

It is extremely likely that we will see considerable further developments. Lawyers will seek to establish that courts and tribunals must take the UK’s international obligations into account when considering all cases involving victims of human trafficking. The fact that the UK’s international anti-trafficking obligations are directly enforceable will also assist victims in holding the state to account where it fails its obligations.

The Supreme Court also relied on the drafting of the Modern Slavery Bill in reaching its conclusions. The Modern Slavery Bill has been criticised for making very little if any provision for victims and concentrating on the criminal process. There is likely to be pressure for further legislation – and caselaw – to protect the rights of victims.

By Juliette Nash, solicitor at the Anti Trafficking and Labour Exploitation Unit (Interviewed by Kate Beaumont).

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

First published on Lexis®PSL.

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Abolishing prison sentences for drug users: sensible or a step too far?

Administrator 1 : August 11, 2014 5:00 pm : Blog, Criminal, Featured

By Merry Neal

Nick Clegg announced last week that a pledge to abolish prison sentences for the possession of drugs for personal use will form part of the Liberal Democrat’s manifesto for the next election. The manifesto commitment would include a promise to move the drug policy lead from the Home Office to the Department of Health, and would seek to divert users into treatment for their addiction, community sentences, or to civil penalties that do not attract a criminal record. The plans would even extend to the possession of Class A substances such as heroin and crack cocaine. This is a controversial proposal, but does it have merit?

Let’s get straight to the point. The war on drugs is not working. The use and abuse of illegal drugs is still endemic in our society. For years now politicians have told us that drug addicts are criminals –  but that is not the whole picture. Drugs act as a catalyst in dragging otherwise law-abiding individuals into a life of crime. What starts as a drug habit tumbles into hopelessness, poverty, theft, prostitution and robbery.

By incarcerating people for possession, the state exacerbates the problem. It puts these vulnerable individuals in close quarters with hardened criminals who can exploit them; it burdens them with a criminal record which will make creating a new life away from drugs all the more difficult.

Prison sentences for possession do not cure the root cause of the offence: the addiction. This is obvious to many, and yet it is a bold statement coming from a politician. One only has to think of the sacking of David Nutt back in 2009 to remind ourselves of the reluctance of the government to engage in the drug reform debate.

The safe political rhetoric is that “tough on crime” equates to more prison sentences. But this well-worn line is no longer standing up to scrutiny, if indeed it ever did. The recidivist rate for those who have served jail time is still unacceptably high for all offences and demonstrates how rarely prison truly rehabilitates. Prison is unlikely to cure an individual of drug addiction. It is a sad fact that drugs will always find their way into prisons, and even if an individual gets clean inside, he is likely to fall back into old patterns upon release.

Each prison sentence costs the taxpayer dearly. Our prison system is still shamefully overcrowded. These are facts, and they cannot be ignored. By aiming to tackle the addiction itself, the state could prevent more serious crime being committed further down the line, whilst reserving the expensive prison spaces for the dealers and the smugglers.

The proposal as set out by Clegg is not perfect. There may be a rare case where a prison sentence is the appropriate sentence, in which case the restriction of judicial discretion in sentencing may not be desirable. A change in policy could be effected however that made allowance for the exceptional case.

There is also an argument that it will be easier for a drug dealer to recruit “runners” if he is able to assure them that a prison sentence could not result. Yet this somewhat misses the point: after all, drug dealers are not currently struggling to recruit runners. The potential punishment is not at the forefront of the runners’ minds: they are already caught in the trap. What matters is developing an overarching drugs policy that helps more people out of that trap for good, and stops them falling into it in the first place.

Currently the vast majority of people caught in possession of an illegal drug are not jailed. The courts make ample use of the various other measures they have available to them when sentencing, including drug rehabilitation programmes. But Mr Clegg’s proposal is symbolic, representing a recognition that drug abuse is as a health issue rather than a legal one, and could be more effectively tackled in that arena. The calls from a rethink of drugs policy have never been louder. Set against a background of drug decriminalisation in several countries, high profile individuals such as Richard Branson and Russell Brand have added their voices to the call for change.

Predictably, Mr Clegg has been accused of going “soft” on drugs. But drug policy should not be about “hard” or “soft” – it should be about effectiveness. Sending drug users to prison for possession is not generally helping them or the wider society. It is common sense to seek alternate mechanisms to tackle the scourge of drug addiction.

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What is the future for UK human rights?

Administrator 1 : August 7, 2014 7:47 am : Blog, Featured, Human Rights

What does the current legal framework for human rights look like in the UK?

The legal framework for protecting fundamental human rights contained in HRA 1998 achieved an unusual balance between incorporating international human rights standards with existing domestic constitutional arrangements. While requiring judges in HRA 1998, s 3 to take account of the European Convention on Human Rights (ECHR) and its jurisprudence in interpreting domestic law as far as possible, it also preserved Parliamentary sovereignty in respect of legislation that was incompatible with the ECHR.

HRA 1998, s 4 only gives judges the power to make a declaration of incompatibility, leaving Parliament to decide whether it will accept the ruling of the court and repeal or amend offending legislation. Such decisions remain ultimately political decisions made by our elected representatives. HRA 1998 is, therefore, a far more sophisticated legal instrument than an entrenched Bill of Rights reflecting the UK’s constitutional history and practice. HRA 1998 is also a secondary source of law to the traditions and fundamental principles of the English common law which has long protected core civil liberties and human rights that find expression in the codified ECHR. In many of the most important human rights cases it has been the common law at the forefront of the judge’s reasoning where breach of fundamental rights have been identified, particularly in the field of criminal law, fair trial and due process rights (see R v Davis [2008] 1 AC 1128Al Rawi v Security Services [2012] 1 AC 531 and In Re Reilly [2013] 3 WLR 1020).

In this regard, the common law and Convention rights are seen to march hand-in-hand and inform each other, continuing the incremental development of common law which has always been flexible and able to adapt and reflect contemporary thinking. HRA 1998 has, however, been the key bulwark against some legislative measures which have most seriously affected fundamental rights, particularly in the field of anti-terrorism legislation and in respect of indefinite detention without trial of foreign terrorist suspects (see A (and others) v Secretary of State for the Home Department [2005] 2 AC 68 and A v UK (2009) 49 EHRR 29), the use of evidence obtained by torture, conditions of house arrest for terrorist suspects (see JJ (and others) v Secretary of State for the Home Department [2008] 1 AC 385) and expulsion of foreign nationals to the risk of torture and inhuman or degrading treatment (see Saadi v Italy (App no 37201/06) (2008) 24 BHRC 123).

There has been talk about repealing HRA 1998—what would change and who would most likely be affected?

Repeal of HRA 1998 would undoubtedly be highly damaging to our legal system after 14 years of legal jurisprudence taking the ECHR into account. The purpose of HRA 1998 was to integrate as far as possible the human rights principles and practice of the Convention into our domestic law and to provide individuals with a domestic remedy to avoid the long delays and protracted litigation involved with taking cases to the European Court of Human Rights (ECtHR). It will be virtually impossible to unravel those developments in the law which depend upon HRA 1998 and which have informed interpretation of domestic legislation and common law principles. This will have wide-ranging consequences at a time when access to justice and public funding for judicial review and other human rights cases have been either removed or dramatically reduced. There is a serious concern that, added to other radical changes taking place in the court system, this will seriously undermine and compromise the administration of justice in the UK.

Those most adversely affected by repeal of HRA 1998 will be vulnerable groups such as migrants and refugees and/or unpopular minorities such as terrorist suspects, offenders and prisoners. The rights of such minorities will be much less secure without HRA 1998 given attacks on the basic protections currently afforded to such groups.

It would mark a significant shift in the constitutional arrangements between Parliament, the executive and the judiciary, with the balance of power moving in favour of the executive. There is a likelihood that the law could be seriously undermined, in particular the foundation principle of equality before the law. The current law, as interpreted and applied by judges, after careful consideration of the principle and practice of international human rights law, will be liable to be overturned by executive dictate in cases concerned with administrative discretion, and the judges’ supervisory and advisory role under HRA 1998, s 4 will be lost. It is unclear whether our courts would be expressly prevented from taking into account ECHR jurisprudence when considering cases involving fundamental rights as they are required to do now under HRA 1998, s 3. It seems absurd that they would or could be.

Would repealing HRA 1998 affect the UK’s standing in the international community?

It will be greeted with disbelief by most mature modern liberal democratic societies, and dismay within Europe itself as a green light to some of the more repressive regimes within the Council of Europe to themselves withdraw from the ECHR. The abandonment of those principles by a leading democratic nation, whose lawyers and representatives were in large measure responsible for the drawing up of the ECHR after the end of the Second World War and the defeat of fascism, will reverberate around the world as a seriously retrograde step after the decades of endeavour to entrench core universal rights for all human beings as the foundation for a civilised society.

What is the general trend in relation to human rights in the UK? Is less importance being placed on legislation now than in the past?

There has been increasing hostility towards the ECHR and HRA 1998 under the current government, within the Conservative Party and in particular from the current Home Secretary and the Lord Chancellor. This is in a context where a part of the press is against the notion that unpopular individuals are entitled to core basic human rights. It reflects a potent mix of authoritarianism, xenophobia and political expediency that dictates the debate around HRA 1998.

A sober and sensible debate would, however, reflect the facts set out earlier that the principles of the ECHR are not an alien imposition on our domestic law. Much of what it protects is already entrenched in the common law. HRA 1998 does act as long-stop against repressive legislation (that could override the long-established values of the common law). But, ultimately, Parliament is supreme and can maintain legislation that is not compatible with the ECHR if it chose to do so. There is no fundamental intrusion on the sovereignty of the UK.HRA 1998 should not be a political football in the wider debates about membership of the European Union.

This above all is what motivates anti-HRA 1998 sentiment because in that discourse there are groups and individuals deemed undeserving of respect for their fundamental rights. It seeks to sidestep what has to be the defining feature of fundamental human rights law, that such basic protections are universal and inalienable irrespective of the conduct or character of the person and how they are perceived by the majority.

In this context HRA 1998 remains of crucial importance because it reflects the central tenant of the rule of law, namely equal treatment. This core principle of our system of justice was very recently evoked by the Divisional Court in litigation brought to challenge the provision of secondary legislation that imposed 12-months of lawful residence as a condition for entitlement to public funding for those with a serious legal case that would not otherwise be funded (see R (Public Law Project) v Secretary of State for Justice [2014] EWHC 2365 (Admin)). The court endorsed a principle of the common law first elaborated as long ago as 1772 in Sommersetts case (Sommersett v Stewart (1772) 98 ER 499) concerning the false imprisonment of an African slave: “those subject to the law have the protection of the law”. The principle was restated by Lord Scarman more than 200 years later in R v Secretary of State for the Home Dept, ex p Khawaja [1984] AC 74.

Immigration status is irrelevant to the protection of the right to liberty and to access to the court. It would be entirely wrong to see the current government’s policy as against the imposition of alien laws from Strasbourg – what is really at stake and under attack are the core principles of British constitutional law and the foundations of British justice which have been in place for centuries.

What do human rights cases over the past year tell us about the direction the UK is taking?

The most important human rights case of the past year was the inquest into the death of Jimmy Mubenga and the finding by the jury that he had been unlawfully killed by escorts privately contracted by the Home Office to enforce removals from the UK. Mr Mubenga was held in a form of restraint on the aeroplane which caused him to suffocate. It transpired during the inquest that the escorts employed by G4S had a financial incentive to secure expulsion of individuals and that a number of them held overtly racist views. The coroner in a detailed and extensive rule 43 report identified “pervasive racism” which was “endemic” and a culture of dehumanisation in respect of the attitude to those subject to immigration control to whom those officials owed a duty of care.

In graphic terms this case shows why this is the time to strengthen, not weaken, mechanisms for enforcement of minimum human rights standards.

This case can be seen in a context where since 2011 the High Court in judicial review has found that the Home Office has subjected vulnerable detainees with serious mental illness to unlawful detention and conditions of detention that constituted inhuman and degrading treatment in breach of the ECHR, art 3 on no less than six occasions:

• R (on the application of S) v Secretary of State for the Home Department [2011] EWHC 2120 (Admin), [2011] All ER (D) 16 (Sep)

• R (on the application of BA) v Secretary of State for the Home Dept [2011] EWHC 2748 (Admin), [2011] All ER (D) 219 (Oct)

• R (on the application of HA (Nigeria)) v Secretary of State for the Home Department [2012] EWHC 979 (Admin), [2012] All ER (D) 76 (Apr)

• R (on the application of D) v Secretary of State for Home Department [2012] EWHC 2501 (Admin) , [2012] All ER (D) 139 (Aug)

• R (on the application of S) v Secretary of State for the Home Department [2014] EWHC 50 (Admin), [2014] All ER (D) 18 (Feb)

• R (on the application of MD) v Secretary Of State For The Home Department [2014] EWHC 2249 (Admin), [2014] All ER (D) 114 (Jul)

Reports and recent elections show that nationalism, racism and anti-immigrant movements are on the rise throughout Europe – what does this mean for human rights?

I reiterate my comments regarding the general trend. These movements represent the biggest and most concerted threat to human rights principles and practice of respect for basic universal rights since the defeat of fascism in 1945. The magnitude of the threat, however, is in the response from the mainstream parties which is not to stand strong with those principles but to appease it and in some cases to accommodate and adopt its mantel for their own political advantage. Attacks on the ECHR and HRA 1998 play into the hands of those with extremist agendas. Scapegoating vulnerable and unpopular minorities in times of economic austerity in particular may pay a short-term political dividend but corrodes our democracy and respect for the rights of all, not just those directly targeted.

It is to my mind a betrayal of those who not only said “never again” to the ghettos, camps and carnage wrought by  racism and fascism  but sought to achieve that through enshrining principles based on equal worth and treatment.  An important expression of which was the entrenchment of universal minimum rights applicable to all. Moreover, rights backed up by a guarantee of surrogate international protection for those discriminatorily denied those minimum rights by their own country of nationality through the right to seek asylum in art 14 of the Universal Declaration of Human Rights.

The government said it will not always follow Strasbourg’s decisions – what does that tell us about the approach to, and future of, human rights in the UK?

The judgments of the Strasbourg Court are binding on the UK. They must be followed. Governments can’t pick and choose whether to abide by the rulings of this court. Such a notion is plainly antithetical to the rule of law and any effective justice system. It is a shocking proposition for any modern democracy. Other states could follow suit and the whole system will be undermined.

What are your predictions for the future?

One can make no sensible predictions about the future if justice policy pursued by the politicians is dictated by short-term political gain.

The radical changes to our system of justice and access to public funding in the past 12 months cannot bode well for the rule of law and respect for fundamental human rights. My fear is that at a time when remaining resolutely behind the principles of universal minimum rights is most needed to ensure the lessons learned (at such cost), they are most under attack and the mechanisms for enforcement of them are not being strengthened but weakened and even removed.

Stephanie Harrison QC at Garden Court Chambers (Interviewed by Kate Beaumont).

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

First published on Lexis®PSL.

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Should children give evidence in family proceedings?

Administrator 1 : August 6, 2014 9:18 am : Blog, Family, Featured

What were the key features of this case?

The case concerned a five-year-old boy. The appellant, his father, had applied for contact. The mother had opposed, alleging violence and so a fact finding hearing was ordered. The mother wanted her 13-year-old daughter, from a different relationship, to give evidence about some of the alleged incidents. That child had never been asked about the incidents and had to date given no account, whether by an Achieving Best Evidence (ABE) interview or otherwise. The judge ordered Cafcass to meet with this child to explore matters further – in particular, whether that child should answer questions put to her in writing and/or give live evidence at the hearing. The father appealed that decision. After the hearing and before the father obtained a stay, Cafcass met the child. Cafcass recommended that the questions should be reworded and reduced in number and also that the child “should not be compelled to provide live evidence” and/or “subjected to live cross-examination”.

What is the significance of this decision?

The case is significant and ground breaking for various reasons:

  • the child concerned was a witness and not the complainant
  • the child concerned was not the subject child
  • the child had never given an account of the incidents and had not been ABE interviewed
  • Cafcass were asked to question the child about these incidents
  • the application of Re W [2010] UKSC 12, [2010] All ER (D) 29 (Mar) is extended

How did the court approach the application of Re W?

The court considered Re W and the Working Party of the Family Justice Council’s “Guidelines in relation to children giving evidence in family proceedings”. Re W concerned care proceedings in which one of the subject children had made allegations, including during an ABE interview, against her stepfather who wanted her to appear at the fact finding hearing to give oral evidence. In contrast, in these private law proceedings the child concerned had not yet given any account and was not the subject of the proceedings.

The Supreme Court in Re W expressly said that, in principle, the same approach would apply in private law proceedings. Although the Supreme Court pointed out specific risks to which a court must be alive in that context. It did not specifically consider what the implications would be if the child in question was not him or herself the subject of the proceedings and/or if he or she had not yet given any account of events. However, Lady Justice Black in the Court of Appeal in Re B stated that she did not think there was any reason in principle why this distinction (or indeed the fact that the child has not yet given an account of events) should render the Re W approach inapplicable. It was argued by the appellant that the essential test emerging from Re W was whether justice could be done without questions being put to the child, relying on what was expressly said by Lady Hale in Re W(at para [30]). Lady Justice Black (at para [24]) stated that she would prefer not to reformulate what the Supreme Court said in Re Win any way as the better approach was simply to balance the relevant factors in the way there described.

What are the practical implications of this decision?

The case will now proceed in the county court. The circuit judge will need to consider the Cafcass report and decide again whether further questions should be put to the child and/or whether the child should give live evidence.

The legal position remains the same – while there is no presumption against children giving evidence in family proceedings, it is rare for this to happen. However, the Court of Appeal has left the door open for this to occur where there is evidence from a child witness of incidents of significance, which evidence may be of importance.

Lady Justice Black did not expect this decision to open the floodgates, leading to a widespread practice of calling children as witnesses in cases such as this one. The Supreme Court did not consider that their decision would lead to children routinely giving evidence, predicting that the outcome of the court’s balancing exercise, if it was called upon to adjudicate upon such matters, would be the conclusion that the additional benefits in calling the child would not outweigh the additional harm it would cause him or her. Lady Justice Black confirmed this approach by saying that “the natural sensitivity and caution of the family courts, which originally generated the now defunct presumption, can be relied upon to ensure that matters are approached in a way which properly safeguards all the interests involved”.

What should lawyers take from this case?

The Court of Appeal endorsed a step-by-step approach by lower courts before coming to the decision that a child should give evidence, which approach allows for more information to be gathered before an irrevocable decision is made. The Court of Appeal stated that in deciding what steps to take, the apparent nature, quality and relevance of the evidence are obviously material but the court may not know enough in the early stages to form a concluded view about such matters.

Lady Justice Black suggests that it would perhaps be preferable for a judge in such a situation to limit the process to an exploration by Cafcass of the impact on the child of giving evidence – followed by a review to consider whether then questions should be put. However, she concluded that for the judge not to have done so in this case was not wrong.

Lady Justice Black gives the following practical advice for such cases:

  • the option of hearing short evidence from the court advisor to explore further the assessment of the child’s further involvement
  • the need to carefully and sensitively consider the process of an advisor questioning a child in these circumstances and the risk that the advisor’s traditional role would be compromised if charged with gathering further evidence from a potential witness
  • the need to consider carefully if there was to be questioning, how the answers to the questions were to be recorded and transmitted to the parties and the court and how they could be challenged in the fact finding hearing

This is an important and developing area of the law. The President of the Family Division has set up a new Children and Vulnerable Witnesses Working Group to look at a number of related issues including that of children giving evidence.

On a more general point the Court of Appeal stated that it was unfair to criticise judges unfairly for a failure to analyse in depth the issues in the case. Lady Justice Black stated that:

“The judgment may not have contained a long discussion of these issues but this court has got to be realistic about the constraints on judges giving extempore judgments, as they have to do to get through the day- to-day business of the family courts. The judge signalled clearly that they were in her mind and that is enough”.

In so doing Re TG (Care Proceedings: Case Management: Expert Evidence)[2013] EWCA Civ 5, [2013] All ER (D) 131 (Jan) was affirmed. This leaves no doubt as to the importance attached by the Court of Appeal to supporting first instance judges who make “robust but fair case management decisions” and sets out again the limited basis on which it can interfere.

Alex Verdan QC, barrister at 4 Paper Buildings (Interviewed by Evelyn Reid).

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

First published on Lexis®PSL.

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