Re MGR (a child) sub nom Calderdale Metropolitan Borough Council v (1) JD (2) JR (3) RD (4) MGR (by her guardian): CA (Civ Div) (Lords Justice Wilson, Sullivan): 9 September 2009 The appellant local authority appealed against a decision refusing to find that the threshold for making a care order in relation to a child (M) set by section 31(2) of the Children Act 1989 had been crossed. M was an eight-month-old girl. She had been taken into interim care just after her birth. She had an older half-sister (S) who was also the subject of care proceedings. S was two years old. The girls shared the same mother but had different fathers. S had been taken into interim care when she was about two months old. The proceedings in respect of the children were consolidated. The mother conceded in the case of S that the threshold for the making of a care order had been crossed on the basis that S was likely to suffer significant physical and emotional harm. The parents made no such concession in the case of M. The care plans for the girls were that they should be placed for adoption. The judge decided that, in respect of M, the threshold was not crossed, with the result that she should return to the parental home. In relation to S, he held that the parents had made such progress in stabilising their lives since S’s removal that, on a trial basis, she should be restored to their care under the auspices of a care order. He adjourned the hearing in relation to S for the local authority to consider amending her care plan to provide for rehabilitation. Held: (1) It was not impossible for the court to find the threshold crossed in relation to one child of the mother but not in relation to another. In the instant case the dates at which the threshold was required to be crossed were different. Nevertheless, it was unusual for a court to reach opposite conclusions about the threshold in relation to two half-siblings in circumstances in which the evidence showed such gross parenting deficits as were shown in relation to S when she was removed from the mother and in which the date relevant to the enquiry in M’s case was only 14 months later. (2) The judge’s conclusion that the changes in the parents since S’s removal were sufficient to justify her attempted rehabilitation into their home was not a conclusion shared by any of the four professionals who gave evidence. Their evidence was that the changes were too insubstantial to warrant rehabilitation. That was therefore evidence suggesting that at the relevant date M had been likely to suffer significant harm. The likelihood of significant harm for the purposes of section 31(2) of the Children Act 1989 did not mean that it had to be more probable than not, only that it had to be a real possibility or one that could not sensibly be ignored, Re H (minors) (sexual abuse: standard of proof)  AC 563 HL followed. Although it had to be established on the balance of probabilities that there were facts from which a real risk of significant harm could be inferred, the judge’s explanation of his conclusion indicated that he had wrongly equated likelihood with probability, Re B (children) (sexual abuse: standard of proof)  UKHL 35, (2009) 1 AC 11 considered. Furthermore, in his judgment the judge had referred to the placement of both children with the parents for a trial period of six months and the need for the submission of amended care plans. That indicated that he had forgotten the effect of his conclusion in relation to the threshold in M’s case and that he considered that the safety of M, as well as of S, required a degree of continuing local authority control following what should be only a trial placement with the parents. That conclusion of the judge and the unanimous professional opinion that it was too dangerous to restore either of the children to the parents at all were consistent only with a conclusion that in the case of M there was a likelihood that she would suffer significant harm if placed with the parents otherwise than under a care order. (3) The weight of the evidence led to the conclusion that the threshold was crossed in M’s case. The judge’s decision was set aside and an interim care order made. Appeal allowed. Care orders – Interim orders – Likelihood of significant harm – Weight of evidence Michael Harrison QC, Joanna Cross (instructed by in-house solicitor) for the appellant; Sarah Singleton QC, Catherine Mason (instructed by Baker Brown (Halifax)) for the first respondent: Roger Bickerdike (instructed by Willscroft (Bradford)) for the second respondent: Sally Beaumont (instructed by Makin Dixon (Halifax)) for the third respondent; John Hayes (instructed by Finn Gledhill (Halifax)) for the fourth respondent.
The Ministry of Justice has announced a review of the way the £2bn legal aid budget is delivered which could see separate civil and criminal funds run by different bodies. The review came as legal aid lawyers warned that firms providing social welfare work are at risk of collapse because of the ‘artificial’ way work is being distributed by the Legal Services Commission. Legal aid minister Lord Bach has appointed Sir Ian Magee, a former permanent secretary at the Department for Constitutional Affairs, to look at ways of optimising value for money in the way legal aid is administered. Bach said: ‘The time is right to review the channels through which legal aid is delivered. It’s 10 years since the LSC was established and there has been considerable change in the type of legal aid and services people want.’ He told the Gazette he was ‘ruling nothing out and nothing in’. However, he said he would be surprised if the LSC ceased to exist, but said it could work alongside another body, with one administering the criminal budget, and the other the civil budget. The two budgets could be ringfenced. An LSC spokesman said it would be working closely with Sir Ian to inform his review. Law Society president Robert Heslett said the legal aid system needed to be ‘reviewed urgently’. He added that the Society is conducting a review of access to justice, and it would be engaging with Magee’s review. Meanwhile, Chancery Lane has warned that the LSC’s policy of capping the number of new social welfare cases or ‘matter starts’ that a firm can take on could cause some firms to collapse. Richard Miller, Law Society head of legal aid, said he had been receiving calls from solicitors who had already exceeded their annual allocation of new social welfare matter starts, particularly in the Midlands. Firms will not receive their next allocation until the new civil contract next October. Miller said firms could be forced to lay off staff or close departments and will be experiencing major cashflow problems ‘that could be fatal’. ‘The overall effect will damage the supply of social welfare advice to vulnerable clients, to which Lord Bach has shown so much commitment,’ he said. Nicola Mackintosh of legal aid firm Mackintosh Duncan questioned why the LSC was ‘artificially limiting the number of clients who can get access to justice’ by allocating firms only a set number of new cases. The LSC spokesman said it would look to reallocate any surplus matter starts from firms not likely to use all of theirs, but its budget was reaching its limit and it could not expand the overall number of cases.
By now many of you will be as inured to the howls of outrage from the profession over legal aid cuts as you are to the cuts themselves. Both are becoming an almost weekly, even daily, occurrence, it saddens one to report.It is apparent though, that however apocalyptic and doom-laden the profession’s language, it seems to be having little or no effect – the government just isn’t listening. Is it time lawyers responded more combatively? One suggested to us that maybe they should take a leaf out of the book of the BA cabin crew, who have planned a 12-day strike over pay, or the refuse collectors of Leeds, who went on strike for 11 weeks until their proposed pay cuts were renegotiated. If lawyers downed tools and refused to represent anyone, surely there would be more pressing things to think about than suing them over breach of competition laws. The government would have to act, and act swiftly. Professions hardly ever resort to withdrawing their labour, of course. It would hurt clients, and anyway it’s just not the done thing. In any case, apologists for the government’s tin ear on this subject might argue that perhaps things aren’t as bad as they’re sometimes painted. A survey of criminal legal aid firms carried out by the National Audit Office showed that, while one in six said they made no profit on criminal legal aid last year, the average profit was a pretty respectable 18.4%. It found that 37% made a 20% profit, and 29% made a profit of between 10-19%. Tesco’s margin is about 9%, for comparison. Time for action, or more sober reflection?
Committal for contempt – Suspended committal orders – Judgment debtor’s failure to attend court Broomleigh Housing Association Ltd v Emeka Okonkwo: CA (Civ Div): 13 October 2010 The appellant (O) appealed against two suspended committal orders obtained by the respondent housing association (B). O was a tenant of B, which had three unpaid costs orders against O in respect of withdrawn possession proceedings. B obtained an order under rule 71.2(2) of the Civil Procedure Rules that O attend court for questioning about his means for the purpose of enforcing the orders. The date for attendance was adjourned many times due to difficulties with service, and during the proceedings the court made two suspended committal orders, requiring O to attend on future dates. O submitted that the principles that applied to making committal orders in other contexts applied equally to proceeding under part 71 of the CPR and that a committal order should not be made unless the judge was satisfied to the criminal standard that the default was wilful and was such as to justify committing the judgment debtor to prison. Held: (1) The terms of rules 71.2, 71.3 and 71.8 of the CPR together suggested that a suspended committal order was intended to be the normal response to a failure by a judgment debtor to comply with an order to attend court for questioning. However, rule 71.8 gave the court power to make a committal order, which required an exercise of discretion and in turn required consideration of the circumstances of the contempt, Islamic Investment Co of the Gulf (Bahamas) Ltd v Symphony Gems NV  EWCA Civ 389, The Times, April 4, 2008 followed. A suspended committal order was too serious to be used as a vehicle for fixing a date for an effective adjourned hearing. Following a reference to him under rule 1.8(1), the judge in determining whether to exercise his discretion should consider the following options: (a) if satisfied that the debtor was served with the order and that there was sufficient evidence to justify a finding to the criminal standard that the failure to attend was intentional and that in the circumstances it was appropriate to do so, he could make a committal order; (b) if not satisfied of the matters necessary for making a committal order, he could adjourn consideration of it and either (i) give directions, supported by penal notice, for a hearing in court, including directions for the debtor to attend, or (ii) give directions, supported by penal notice, for the debtor to serve an affidavit; (c) decide not to make a committal order and make a further order under rule 71.2 for the debtor’s attendance, perhaps including a recital stressing the possible consequences of further non-attendance (see paragraphs 21-22 of the judgment). (2) There was material on which the judge could have been satisfied that it was appropriate to make the first committal order, but there was no indication that he exercised his discretion in respect of either order (paragraphs 23-24). Appeals allowed. Christopher Jacobs (instructed by Hodge Jones & Allen) for the appellant; no appearance or representation for the respondent.
Thumbing through the latest speech given by an esteemed member of the judiciary last week, Obiter read something so unexpected it almost – though not quite – caused one’s glass of brandy to tilt to a dangerous degree. In a complete reversal of normal events, the Master of the Rolls, Lord Neuberger of Abbotsbury (pictured), had seen fit to quote the humble Gazette instead of the Gazette quoting his lordship. In a speech about the social status of lawyers, he said: ‘Lawyers may not be the most popular of professionals in all quarters. That is certainly the view expressed in a recent article by Jonathan Rayner in the Law Society Gazette, entitled ‘Why are lawyers so unpopular with the public?’ [Rayner] said this, “… there was the time I introduced an old mate of mine to my partner, a solicitor. We had known one another for years and much of his income, as it happened, derived from work I was putting his way. That didn’t stop him regaling her for the next half an hour with an account of why he loathed lawyers… How did lawyers get it so very, very wrong?”’ After quickly glancing up to ensure the ceiling was still above one’s feet, and not below, in this new topsy-turvy world, Obiter read on as Neuberger continued: ‘I don’t intend to try to discuss the correctness of that analysis or to answer that question… [but] whatever they have been getting wrong, lawyers have apparently been getting it wrong for quite some time. ‘Around the second century AD, Apulieus, having referred to lawyers as “cattle of the courtroom”, then expressed the view that they were no more than “vultures in togas”. While Ammianus Marcellinus, two centuries later, took the view that lawyers were “a greedy and debased lot, who conspired with judges to rob the people of justice”.’ Though surely even the fiercest detractors of lawyers and the judiciary must concede that they do have impeccable reading habits. See the Gazette blogs.
It is ‘inevitable’ that someone will die if the government proceeds with planned legal aid funding cuts for cases involving domestic violence, the Law Society has warned. Vice-president Lucy Scott-Moncrieff told a fringe meeting at the Labour Party conference in Liverpool that the definition of domestic violence used in the Legal Aid, Sentencing and Punishment of Offenders Bill is too narrow. The evidential requirements to establish domestic violence were so high that they exclude the majority of victims, she stressed. Scott-Moncrieff said it would be very difficult for people who have suffered domestic violence to take matters to court and stand up to their abusive partners without legal aid for representation. Domestic violence often preceded murder and manslaughter, she added, and it was therefore ‘inevitable’ that someone would die as a direct result of the cuts. Shadow legal aid minister Andy Slaughter MP told the meeting that the government’s proposals amount to ‘the most sustained attack on access to justice since legal aid began’. The unwillingness of ministers to listen and respond to the legal profession’s concerns about the bill had caused a breakdown in relations between government and the profession, he added. Slaughter promised to continue his party’s opposition to many of the bill’s proposals, pressing for a wider definition of domestic violence and the retention of funding for social welfare law. Labour would not have sought to reduce legal aid for social welfare law, but would instead have pursued measures to reduce the amount spent on criminal legal aid, and the introduction of best value tendering, he said. Slaughter predicted that the government will continue to face intense pressure over its planned reforms to civil litigation funding. He told the Gazette: ‘People are waking up to the implications of the changes. They are starting to understand that the issue concerns the ability of ordinary people with limited means to get redress against those with assets who have harmed them.’ He criticised the government’s ‘piecemeal, cherry-picking’ approach to the recommendations made by Lord Justice Jackson, an approach that ‘played to the insurance industry’.Slaughter said the measures in the bill did nothing to control the excess costs in the system created by referral fees and advertising by claims management companies. Former legal aid minister Lord Bach, who will lead Labour’s opposition to the bill in the Lords, told the meeting that the government’s plans were ‘practical and financial madness’, which would cost more than they save and leave people with nowhere to turn except their MP’s surgery. Join our LinkedIn Legal Aid sub-group
Eduardo Reyes is Gazette features editor Anyone who’s taken time out to read my recent Gazette features will know that I’ve received many pieces of legal services and legal market surveys and research down the years. Sometimes they impress, and sometimes they don’t – and unlike restaurant critics who haven’t worked as chefs, I’ve had to put my credibility on the line by doing surveys that are judged by others. One finding that caught my eye recently was from a survey conducted by Peppermint Technology, who worked with some of the names that commonly get mentioned in the same sentence as the phrases ‘brave new world’ and ‘legal services market’. 81% of ‘consumers’ (I know, I know, ‘client’ is my preferred word too), ‘are in favour of an out of hours service’ the Peppermint survey found. Is that a challenge to most practices? No part of the legal profession works notoriously short hours. I think most emails from my solicitor about arrive on Sunday, or in the evening, and I know he isn’t unusual. So why does a finding like Peppermint’s sound like it might require a change in solicitors’ working habits if they are to compete with newer, larger market entrants? Is this consumer/client preference a ‘challenge’ to a small practice? Presumably not, though that does not mean that no action is required. I suspect that this is mostly a challenge of communication. For many solicitors their commitment and availability is there – it just isn’t worn on their sleeve in the way that banks, say, broadcast 24-7 telephone services. But if a practice can devise a way to state its commitment, and somehow define post-5.30pm availability (ring-fenced and made predictable for reasons of sanity and a home life of course), this is surely an area where smaller practices shouldn’t fear new market entrants?
The boot was on the other foot last week, when Obiter found himself cast as a token male at the International Women in Law Summit 2012. He listened with humility as Law Society vice-president Lucy Scott-Moncrieff told delegates that senior male partners generally thought they deserved their success, rather than it being a mere ‘accident of birth’ that they were not born female. Set up on your own, she urged delegates, it’s the one way to be sure that ‘your male boss is not being unfair’. City firm Ashurst partner Helen Burton told a breakout group about an all-women shortlist for promotion that she and others had to consider. She said: ‘Someone wondered whether we should add a man to make it look good, even though for years it had been OK to have all-men shortlists…’ A delegate had the final word: ‘Women are more efficient than men – and more honest.’ Obiter sloped off home, duly chastened.
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