January is notoriously a busy month for divorce lawyers. Perhaps people stay together for Christmas for the sake of the children or for the endless round of family events; or perhaps the festive period itself, too often associated with excess alcohol, proves to be the final straw. Or maybe it’s the New Year period, often a time for reflection on the past and planning for the future, resolving to improve our lives in some way. Along with losing weight and getting fit, resolutions can include getting out of a relationship which has turned sour.
If a relationship is truly over, it’s in everyone’s best interests for it to be ended as smoothly as possible, minimising conflict and unpleasantness, while still ensuring that everyone’s rights are protected. Some DSD family lawyers are members of Resolution, an organisation committed to a constructive approach to family problems, and last month DSD received recognition as the firm making the highest number of referrals to Kent Family Mediation.
Our current divorce law was first established as long ago as 1969. Since then, family life has changed radically; the law hasn’t. That Act set out the one ground for divorce – that the marriage has irretrievably broken down. The word ‘irretrievably’ is important; the breakdown must be permanent and irreparable. In order to prove the marital breakdown, you have to prove one of five facts:
- Adultery by your spouse – you can’t rely on your own adultery – making living together intolerable. Curiously, even in these days of same sex marriage, adultery is still defined as intercourse with a member of the opposite sex so having a same sex extra-marital affair doesn’t count;
- Behaviour such that it is unreasonable to continue living together – this is the most common basis for divorce;
- Desertion for 2 years (very rarely used);
- Separation for 2 years with consent to divorce;
- Separation for 5 years even in the absence of consent.
These reasons justifying divorce hark back to a concept of fault, but have no impact in deciding the financial settlement, which is not concerned with ‘punishment’. The vast majority of divorces are uncontested – generally speaking, if one partner has gone far enough to file for divorce, the marriage is effectively over – which makes one wonder why it is necessary to specify facts in the first place.
Particularly in the case of so-called ‘unreasonable behaviour’ divorce petitions, things can get nasty. A case which went to the Court of Appeal last year may even have made things worse. Mr and Mrs Owens had been married for 39 years and had what the President of the Family Division described as a ‘wretchedly unhappy marriage’. But that isn’t a ground for divorce. Mrs Owens was in an adulterous relationship, but as she was the one who wanted a divorce, it didn’t count. Mr Owens contested the divorce. She pleaded his unreasonable behaviour with a list of 27 allegations. There was nothing dramatic, no domestic violence, cruelty or abuse. Her petition listed things like him putting work before her, not giving her love and affection, having mood swings leading to arguments and being nasty about her in front of family and friends. The whole picture was one of an unhappy marriage, but a very high-powered Court of Appeal were obliged to apply the law and found that the allegations did not amount to behaviour such that Mrs Owens could not be reasonably expected to live with her husband. So the divorce was refused. The consequences for Mrs Owens are probably that she will have to wait until she has been separated from her husband for 5 years (during which time she will not be able to marry her lover or to get any financial support or property out of the marriage). For everyone else, the consequence is that divorce petitions will probably get more detailed and nastier, just to be on the safe side.
Indeed, research conducted last year by the Nuffield Foundation found that our current divorce law incentivises people to exaggerate claims of unreasonable behaviour to get a quicker divorce. Even if you agree to a divorce, having all your failings itemised in black and white hardly creates the best atmosphere for constructive discussion. And the fact is that, in most cases, the key issues to be decided are not the fact of the divorce itself but the questions of property, money and, most importantly, children. Being able to conduct these discussions in a civilised manner wherever possible should surely be a priority for the system.
The Nuffield research and Resolution agree that we should move to a system of no-fault divorce. However, other voices are raised expressing concern that divorce should not be made too easy, for fear of undermining the institution of marriage.
What does seem clear is that our current divorce law is no longer fit for purpose and it is high time for a serious debate leading to much-needed reform.
Once again it’s time to make resolutions. So here are a few suggestions:
Make a will! Or if you have already done so, review it to make sure it is still up to date. Of course making a will takes time and never seems to get to the top of the ‘to do’ list, pushed aside by more pressing matters. But do you really want your hard-earned property to be distributed according to standard, possibly inappropriate, rules? Do you really want to make a generous donation to the Chancellor of the Exchequer? Do you want to put your loved ones through even more complication at an already difficult time? If not, now is the time to take the bull by the horns and make an appointment to see a DSD wills specialist who will guide you through the process as painlessly as possible.
At the same time think about organ donation. In England, donation is a positive choice, unlike many other countries such as Wales, where consent is presumed. Make your views known now so everyone is clear what to do if the awful moment arrives.
Near the top of most people’s resolution lists are plans to cut down on bad habits – drinking, smoking, unhealthy eating and so on. These are personal choices and most of us already avoid extremes but our family law specialists at DSD know only too well that unhealthy habits taken to excess can cause real and distressing harm to family life. Domestic violence cases too often involve alcohol; cases of child neglect are frequently linked to parents’ consumption of drugs or alcohol. So now is the moment to have a good honest look and, if anything seems to be getting out of control, seek help now. Although DSD family lawyers are here to help, no-one wants to end up in the family court this year.
Following last year’s revelations of sexual and other harassment in the workplace, a good resolution for us all must be to behave with more respect and consideration; for employers to make sure that procedures and policies are appropriate; for everyone to report problems promptly before they get out of hand and to support whistle blowers. DSD’s employment lawyers can help employers make sure their house is in order and represent any employees on the receiving end of inappropriate behaviour.
For the government, here’s a resolution – get Brexit out of the way as quickly and smoothly as possible so Parliament can give priority to domestic legislation, such as desperately needed legal aid reform.
And for the media, how about a resolution for responsible reporting? No more of last year’s excesses, such as describing as ‘enemies of the people’ judges who were just doing their job of rigorously applying the law to the facts of the case, or labelling as ‘traitors’ MPs who simply followed their conscience in a Parliamentary vote. Our civilised society depends on our Parliamentary democracy and our impartial judiciary who must be able to do their jobs without fear or intimidation.
What about predictions for the year ahead? In legal terms, we can expect more developments in employment law, trying to sort out the implications of the growing ‘gig’ economy; a decision about civil partnerships for straight couples; perhaps reform of divorce laws and – we hope – legal aid reform. But just as resolutions are usually broken, predictions usually turn out to be wrong.
You have to feel sorry for the Church of England. Mindful of past scandals in the church, and in the febrile atmosphere following the Savile affair, when a woman made an allegation of past sexual abuse by a long-dead Bishop, the Church investigated, apologised and paid her compensation. But that wasn’t the end of the story. The Bishop’s family, friends and admirers were outraged, complaining that he had been condemned as guilty without trial, and his hitherto unblemished, even heroic, reputation (he played an active role in saving Jewish children from Nazi Germany, for example) had been irreparably tarnished.
So the Church commissioned an independent review by Lord Carlile into how it had handled the complaint. It ended up having to apologise again, this time for mistakes made in the process. The Church seems to have over-compensated for past errors. Whereas previously institutions like the Church often adopted the reflex of disbelief and denial, in this case the Church seemed to start with a presumption that the allegation was true without undertaking any rigorous investigation. A presumption of truth is just as wrong as a presumption of fabrication.
As DSD’s child care specialists know only too well, the fact is that investigating allegations of abuse is not easy, even when they relate to current events. It becomes exponentially more challenging when the allegation is historical, especially where the alleged abuser is dead and self-evidently unable to speak for himself.
The Bishop’s case is a salutary reminder that all allegations must be treated with the utmost care, with sensitivity to all involved and with rigorous observance of fundamental principles of natural justice. Acting in good faith is not enough. Lord Carlile found that the Church’s key mistake in the Bishop’s case was a failure to be fair to both sides and to ensure that both were informed, represented and heard.
There must be no pre-conceptions and no rush to judgment; Lord Carlile reminds us that this includes taking care about the language used – words like ‘victim’ or ‘survivor’ pre-judge that abuse actually occurred; he recommends a neutral term such as ‘complainant’.
Investigations must be methodical and try to find as much objective evidence as possible even though by definition, abuse often occurs in secret and accusation is usually met with denial. Evidence may include the statements of the people directly involved, other witness evidence, medical and other forensic or expert evidence. It is usually a jigsaw of numerous little pieces of often contradictory information. Add to this a dead defendant and memories going back decades, and it’s clear that the process is far from easy and must be very carefully handled.
Having obtained the evidence, what standard of proof must we apply? This depends on the legal context because abuse allegations can lead to both civil and criminal cases. Civil cases could include care or other family court proceedings in the case of allegations of current abuse, or claims for compensation. Enquiries such as the Church’s investigation also fall into the civil category. Criminal cases, on the other hand, could include charges of rape, gross indecency or other sexual crimes.
This matters because civil and criminal courts have different functions and, in consequence, their procedures, rules of evidence and, crucially, standards of proof are all different. So the same allegations can be treated quite differently in two different contexts.
Everyone knows from endless TV dramas that in the criminal court, the defendant is presumed innocent until proven guilty ‘beyond reasonable doubt’. This means that the court must as sure as it is humanly possible to be. It is a very high standard.
Civil proceedings, however, work on a different, lower, standard – the ‘balance of probabilities’. This means that a court must be satisfied that it is more likely than not that the alleged actions occurred. Evidence is still required, and the case must still be proven – suspicion is not enough, but the standard of proof is lower.
This means that the same allegation and the same evidence can lead to different outcomes. If there is a criminal conviction, there is no problem – the lower civil standard is inevitably satisfied. But the reverse isn’t true. Imagine a family court finds on the balance of probabilities that a father has sexually abused his child. This means the court has decided it is ‘more likely than not’ to be true. But this isn’t enough for a criminal conviction – the father might be acquitted in the criminal court or not even charged with a crime in the first place. This can be hard to take; it feels like a contradiction, as if the same person has been found both guilty and innocent and the allegation has been both believed and dismissed at the same time. But legally speaking, it’s perfectly logical.
As if this weren’t difficult enough, there is the extra consideration of confidentiality or publicity. The Church was criticised for publicising the Bishop’s name, leading to reputational damage regardless of the outcome of the investigation (mud sticks). In family proceedings, there is a strong presumption of absolute confidentiality and no information may be published which risks identifying the children involved. In criminal prosecutions, the complainant is guaranteed anonymity while the accused is not – this week we have also seen the case of the rape trial of a student which collapsed when, at the last minute, evidence came to light which led to the prosecution being dropped. His name was in the public domain for 2 years, while his accuser remains anonymous. We have also seen recent debacles involving unsubstantiated allegations against Leon Brittan and Cliff Richard which led not to criminal prosecutions, but apologies issued and compensation paid by the police.
Of course the counter-argument justifying the early publication of the names of accused people is that it allows others to come forward with information or further allegations, a valid consideration given that abusers often show a pattern of behaviour not limited to one victim. This was key in identifying the extent of allegations against Jimmy Savile. However, in the Bishop’s case, it was telling that in spite of the publicity not one other complainant came forward.
Given the challenges of dealing properly with allegations of historical abuse, imagine the enormity of the task facing the Independent Inquiry into Sexual Abuse. It is charged with investigating literally thousands of historical allegations stretching back decades and involving hundreds of institutions as well as various well-known individuals. Interestingly, the Inquiry readily uses terms like ‘victim’ and ‘survivor’, apparently unconcerned about the danger highlighted by Lord Carlile of pre-judging the truth of allegations made. It is perhaps not surprising that such a massive, unwieldy enquiry has been dogged by problems since its establishment by Theresa May when she was Home Secretary in 2014. It is currently on its fourth Chair and has already lost the confidence of some groups. To date, we have had no indication of the Inquiry’s progress, although an interim report is expected in April 2018. We will probably have to wait until 2020 for final conclusions. At a cost of some £20 million this year alone, and with overall costs likely to reach £100 million, we can only hope that it proves to be money well spent at a time when services for children who are in need of protection right now are stretched to breaking point. Given the trouble the Church had with one single allegation of historical abuse, it’s hard to be optimistic.
OK, so the romance might be a bit lacking, but at least the legal terms of the proposed marriage would be clear!
Prince Harry and Meghan Markle’s engagement is a good news story. But it’s also a reminder of engagement as a time to prepare for marriage – an event which marks a significant change not just in our personal emotional lives but also in our legal status.
Like the Royal couple, many people now marry when they are old enough to have built their own lives, careers and perhaps to have amassed some property and wealth. And many people come into marriage a second time, bringing with them a past history of former matrimonial homes and property and, often, children of whatever age.
No-one wants to think about the end of a marriage before it has even started. It may not be romantic, but it is sensible to think in advance because, like it or not, all marriages end one day - whether by divorce or when death us does part.
This is why, along with planning the dress, the reception, the flowers, the photographer and all the glorious complication of the big day, sensible couples also thing about two more things:
- a pre-nuptial agreement (to cover the possibility of separation) and
- a will to cover the eventuality of the final separation. A will is critically important, as any previous will is automatically revoked on marriage. So unless you make a new will as soon as you are married, you risk dying intestate, meaning you don’t decide who inherits your property – the law decided it for you. This can be especially complicated, delicate and upsetting in the case of a second marriage with children from a previous union.
It has to be said that pre-nuptial agreements are not strictly legally binding in the UK. On divorce, the court decides whatever arrangement is the fairest and doesn’t have to follow the pre-nup. So, you could ask, what’s the point? The fact is that the court has to take pre-nuptial agreements into account. Indeed, provided the agreement (pre- or post- nup) was entered into freely by both parties with full understanding of the implications, then the court should follow it unless in the circumstances it would be unfair to do so. This means there is a presumption in favour of the parties’ own agreement.
The law was settled by the Supreme Court in 2010 in the case of Radmacher v Grantino. The couple weren’t exactly a typical family – he was a rich French banker and she was from a wealthy German family with a fortune of over £100 million. Their pre-nup agreement, made in Germany, provided that neither should benefit financially from the other should they divorce. 9 years and 2 children later, by now living in England, they decided to divorce. The husband asked for nearly £7 million and argued the pre-nup shouldn’t apply. The Supreme Court decided it should. Of course there are a few more nuances to the judgment which are fascinating to family lawyers, but the bottom line is that this rather exotic and wealthy couple have clarified the law for the rest of us.
But notice the conditions – to have any sort of effect, the agreement must be entered into freely and with full understanding of the implications. This means that impartial, expert legal advice is essential, especially at a time when the couple may be starry eyed and unwilling to contemplate the harsh realities of life. Of course, DSD is here to help you get it right.
And what if the couple never make it to the altar? If one party has invested hard-earned savings in a stunning ring for the other, who gets to keep it if they split up? Parliament addressed this sticky issue in the Law Reform (Miscellaneous Provisions) Act 1970 and decided that the presumption is that the ring is a permanent gift unless it was made clear at the time that it was conditional on the marriage taking place.
So the prudent soon-to-be fiancé(e) proposes with the words: ‘Darling will you marry me? Here is a ring as a token of our engagement given on condition of the marriage actually taking place. I’ve made an appointment to see our solicitors to draft a pre-nuptial agreement tomorrow, and we’ll make another just after the wedding to make our wills. What do you say?’
It will never catch on.
Last week was Cohabitation Awareness Week. Why do we need our awareness raised? Millions of people in the UK live with their partners informally, without being married or in a civil partnership. Resolution, an organisation for family lawyers committed to the constructive resolution of family disputes, believes that many of them don’t know what their rights are.
So how well do you know the law? Try our quiz to find out.
1. True or false: People who live together have the status of ‘common law wife/husband’.
2. How many years must a couple live together to have the same status as a married couple?
3. If an unmarried couple have a baby together, does the father automatically have parental responsibility?
4. True or false: If one unmarried partner dies without leaving a will, the other automatically inherits everything.
5. True or false: If you live together, your income is jointly assessed for means-tested benefits.
6. If you live in rented accommodation with your partner and your partner is the tenant, what rights do you have if s/he asks you to leave?
7. True or false: unmarried partners are automatically recognised as each other’s ‘next of kin’.
8. True or false: pension providers automatically regard unmarried partners as the same as married couples.
9. Can an unmarried partner be forced to give evidence in court against their partner?
10. True or false: when unmarried couples separate, the same rules apply to sort out their property as for a married couple on divorce.
Scroll down the page for the answers
How did you do? Here are the answers:
1. False – there is no such thing as a ‘common law’ spouse.
2. It doesn’t matter how long you live together, you never get the same status as a married couple. The only way to acquire married status is to marry!
3. No. Unmarried fathers, even those who live in a settled family relationship with the child’s mother, don’t have any automatic rights. They can acquire parental responsibility by jointly registering the child’s birth or by subsequently entering a formal agreement with the mother or by getting a court order. Married fathers, on the other hand, automatically have parental responsibility.
4. False. A widow/er automatically inherits the estate if there is no will, but an unmarried partner has no automatic right to inherit anything.
5. True. Although generally unmarried couples retain their own individual money and property, this is not the case when it comes to means-tested benefits, when both partners’ incomes are assessed.
6. None. You have no automatic rights to occupy the property if your name is not on the tenancy.
7. False. ‘Next of kin’ is not strictly a legal status. Many institutions recognise unmarried partners, but they are not obliged to do so and there is no remedy if they refuse. This can be really important, not just in questions of medical treatment but also on death – an unmarried partner’s wishes with regard to a funeral can be overruled, for example, by the deceased’s partner’s parents if there is no will.
8. False. You can nominate your partner as a beneficiary, but nothing is automatic.
9. Yes. Whereas a spouse can’t be forced to give evidence in court against his/her spouse, an unmarried partner can.
10. False. Unlike divorce, there are no fixed rules to resolve financial matters between separating unmarried couples; each case has to be considered individually.
Are you surprised or even shocked by any of the answers? If so, you are not alone! That’s why this week is needed to inform people about the legal insecurity of cohabitation, and to raise the issue of whether it’s time to reform the law.
Think of ‘Children in Need’ and you probably think of last week’s all-singing, all-dancing fund raising spectacular. But for child care lawyers, the term ‘child in need’ has a very particular meaning under section 17 of the Children Act 1989. This is the cornerstone of the statutory regime to support children and their families, helping them to stay together and preventing the need for child protection intervention.
Parliament clearly intended to spread the supportive net pretty wide – the definition of children ‘in need’ is strikingly broad. It includes all disabled children (even if they are happy and thriving, receiving excellent care in loving families), as well as children who, without services, won’t thrive (‘unlikely to achieve a reasonable standard of health or development’) or those who are risk of moving towards child protection (‘whose health or development is likely to be significantly impaired’).
The wording is wide enough to include everything from unaccompanied young asylum seekers, to pregnant teenagers, from young carers, to children with mental health problems, from children whose parents are struggling, to young people leaving custody.
This breadth is the section’s strength and weakness at the same time. It’s a strength because it gives agencies power to help wherever necessary. In an ideal world, prevention is always better than cure and support is always better than compulsory intervention - that was clearly the idealistic philosophy behind the Act.
But it’s a weakness because such a wide power is inevitably a general one, not a specific duty owed to particular families. Authorities have very wide discretion as to the nature and level of services they provide, so individual families don’t have enforceable rights; the courts have decided that parents can’t sue for breach of statutory duty if they don’t receive a service they need. Judicial review may be a possibility, but only in very limited circumstances - if the authority has got the law wrong, has acted unlawfully or improperly, has failed to follow proper procedures or has acted so unreasonably that no rational body could have made the same decision.
In the real world, authorities have limited budgets and inevitably impose their own eligibility criteria for services. This means that the services you receive (or, more probably, don’t receive) depend on where you live. The Act’s intention of supporting families to stop problems getting out of control and to help children thrive is often frustrated as services are restricted to only the most concerning cases, limited to children suffering or at risk of abuse or neglect, thus blurring the boundary between provisions for children in need and those requiring protection.
This matters because the two categories are in different parts of the Act, reflecting fundamental differences of approach and mind-set. Children in need services are supportive and co-operative, whereas child protection duties are more interventionist and compulsory. Child protection cases receive far more supervision and services than children in need, the duties on the local authority are significantly more onerous and there are prescribed procedures to follow. There are suggestions that pressure on local authority resources has led to some cases being effectively downgraded - children being categorised as children in need whereas in fact they require protection.
The bottom line, as ever, is the question of resources. If as a society we were really serious about promoting children’s welfare and about supporting parents to help their children to thrive, we would devote enough resources to ‘child in need’ services to enable the statute’s honourable intention to become reality. An annual extravaganza, however entertaining, beneficial and well-meaning, is no substitute for a genuine commitment to children’s welfare.
Adoption is the most radical order any court can make. A child is permanently and irrevocably moved from one family to another. His or her whole legal identity changes for life.
Some children are voluntarily given up for adoption by birth parents, others come to adoption through care proceedings. In such cases, the court makes an order authorising the local authority to place the child for adoption because s/he has suffered (or is likely to suffer) significant harm and no other arrangement for the child will meet his or her needs.
Adoption is a hugely emotional process for all concerned - birth parents, children and adopters. Professionals too can be affected by the immense responsibility of such a life-changing process. Whichever party in the process they are representing, the family law specialists at DSD never forget the critical importance of any case involving an adoption plan and do their utmost to ensure that no legal stone is left unturned to secure the right outcome.
But adoption is also a highly confidential process. Parties and professionals are not free to discuss cases openly. Perhaps that explains why, when adoption is featured in the media, we often hear a very partial account, heavily weighted in favour of one party or another and frequently presented in highly emotive terms. The general public usually have little chance to understand why children are placed for adoption or how the system really works in practice.
That's why Radio 4's series of podcasts 'The Adoption' is so welcome. For once, adoption is described in an insightful, calm, sensitive and reasonable way. The broadcasts explore step by step the adoption process for two children aged 2 and 3, called (for the purposes of the programme) Bethany and Ben. The programmes feature the perspectives of all the participants in the process - the children's birth parents (who opposed adoption), their birth grandparents (who, reluctantly and sadly agree that adoption is necessary), their current foster carer, the social workers, and the prospective adopters. We also hear the voices of the children themselves. The usually confidential Adoption Panel is also featured.
The podcasts give a real insight into the reality of the adoption process. Radio 4 and the reporter Jon Manel are to be congratulated for their thoughtful handling of this sensitive subject. Special thanks and enormous respect are due to the birth family for contributing so bravely and openly to the programme in such painful circumstances.
You can listen to the series of podcasts on the Radio 4 website at: http://www.bbc.co.uk/programmes/p05k3wsq/episodes/player
The government has announced a review of Legal Aid to be finalised next summer. Let’s hope it is a thorough and open review, because something drastic needs to be done. Anyone involved in Legal Aid knows the current system isn’t working. Last month a report by a heavyweight commission led by former justice minister Lord Bach found a justice system in crisis, people being denied access to justice by the reduction in the scope of Legal Aid and excessively stringent eligibility requirements, as well as ‘unwieldy and creaking bureaucratic systems’, not to mention uncertainty about the very viability of Legal Aid practices.
How did we get here? In 2013, as part of swingeing cuts to the Legal Aid budget, provision of Legal Aid was radically reduced and in the case of family law, practically eliminated. As the Law Society President, Joe Egan, put it ‘hundreds of thousands of people eligible for Legal Aid on 31 March became ineligible the very next day.’
Early assistance was especially hard hit, yet simple common sense tells us that sound advice at the outset can save time and money – either avoiding the need for court proceedings altogether, or making things go more smoothly if they do end up in court.
The decimation of Legal Aid in family cases resulted in courts filled with unrepresented litigants. By definition they are not lawyers; they don’t know the law or court rules and they don’t understand the system. Going to court is stressful for anyone at the best of times; far more so if you are on your own. Added stress is hardly likely to help families in difficulty, with an inevitable knock-on effect on the most vulnerable people in the process - the children.
A less obvious, but no less significant, effect is a subtle change in the role of the judge. Our legal system is adversarial; two (or more) opposing parties put their case to an impartial judge, who listens and decides but does not direct the way the case is put. However, when one or both parties are unrepresented, the judge is forced to take a more active role to ensure that the cases are properly put, that the court receives relevant evidence and that appropriate questions are asked. The judge has to compensate for the absence of advocates and becomes more like an inquisitor. Effectively, we are introducing an element of a continental-style inquisitorial system into our courts, unacknowledged and by the back door.
And of course there must be another effect, but we can never know its extent. How many people with valid cases never pursue them because they can’t afford a lawyer? As Joe Egan put it: ‘If people cannot access advice or protect their rights, then effectively those rights do not exist.’
The review will consider changes to the scope of Legal Aid, including in family cases. We have to hope it will accept Lord Bach’s recommendation to bring all cases involving children back into the Legal Aid system. It will also look at fees, procedural measures, amendments to eligibility rules and the merits test.
In addition it will consider the replacement of the Legal Services Commission by the Legal Aid Agency. No-one will mourn the death of the LSC, especially not the long-suffering administrative staff at DSD who daily have to negotiate the obstacle course of Legal Aid. It’s worth bearing in mind that none of the considerable administrative burden of Legal Aid is remunerated, increasing the challenge to already cash-strapped Legal Aid providers. However, those with long memories don’t recall many fond feelings for the Legal Aid Board (the LSC’s predecessor) either, so unless there is a radical overhaul, simply changing the name and designing a smart new logo will help no-one.
So, this review, if overdue, is to be welcomed. Let’s hope it will be undertaken with an open mind and most importantly with an overriding focus not on saving money but on how best to achieve equal access to justice for all, which is truly a mark of a civilised society.
Taking children away from their parents is a drastic step. The only possible justification is to give them better care than they received at home. Thankfully, this is usually true but tragically sometimes children are removed from home only to be abused by their foster carers. When this happens, what redress is available?
Physical and sexual abuse are criminal acts, so clearly there is the possibility of prosecution and in addition where a crime is committed, criminal injuries compensation may be payable. Furthermore, anyone harmed by another person, whether deliberately or through negligence, may also have a claim for compensation in the civil courts.
Who can be sued? In the case of abuse by a foster carer, the obvious person responsible is the perpetrator - the foster carer him/herself. However the average foster carer is unlikely to have deep enough pockets to pay out much by way of compensation, so taking a case through the civil courts may be a waste of time and money. So what about the local authority? It is responsible for approving foster carers, selecting the placement for a particular child with a particular family and for supervising that placement. If the authority is negligent, for example if it didn’t carry out proper checks or supervision, then it can be sued for its own negligence. But can it be held responsible if it did nothing wrong?
This was the case for one seven-year-old child who was taken into care by Nottinghamshire County Council in 1985. The local authority carried out its responsibilities properly. It was not negligent in the selection or supervision of foster carers - but this did not stop the child being abused in foster care. Appallingly, she was physically and emotionally abused by her first foster mother, so she was moved to another foster family, only to be sexually abused by her second foster father.
As an adult, she wanted redress for what she suffered in her childhood. Could she sue the local authority, even though it had done nothing wrong itself? Is the authority responsible for the actions of its foster carers? The question reached the Supreme Court on 18 October 2017.
The answer all depends on the legal doctrine of ‘vicarious liability’ whereby one person or organisation who is blameless can be held responsible for another person’s wrongdoing. Typically this applies to employers who are liable for the actions taken by their employees in the course of their jobs. But foster carers are not employees. Their duties consist primarily of providing a normal family life for a child in their own home, 24 hours a day. The local authority does not stipulate how they carry out these duties and clearly cannot supervise beyond receiving regular reports and carrying out regular visits. Foster carers are, almost by definition, largely autonomous. Is this the same situation as an employer / employee relationship?
Back in 1985 – ironically the very same year the claimant was taken into care – the Court of Appeal said no, local authorities are not vicariously liable for their foster carers. That was where the law remained until now. Indeed, when the Nottinghamshire case came to the High Court and on to the Court of Appeal, both courts found that the local authority could not be held responsible for the foster carers’ actions. The claimant took the case on to the Supreme Court and won.
By a 4:1 majority, the Supreme Court decided that the relationship between local authority and foster carer does meet the necessary requirements to create vicarious liability. Foster carers are an integral part of the authority’s child care services, carrying out the local authority’s task of looking after children; effectively the authority benefited from the foster carers’ work. The local authority created the situation of risk by placing the child with carers in a situation where it was impossible to exercise close control and the carers had to be trusted. Finally, the authority approved, inspected and supervised the carers, all the while retaining the power to remove the child, so although it could not micro-manage her care, it had control. Effectively the authority controlled what the carers did, if not how they did it.
The court also took into account the authority’s ability to compensate the victim, in contrast to the abusive foster carers themselves. This last element was, arguably rightly, criticised by the dissenting judge as being a circular argument – whether or not a defendant is in reality able to pay compensation should form no part of the analysis of whether or not in legal terms he is liable to do so. The court perhaps found a justification for the desired end, namely to achieve justice for abused children – an understandable if not necessarily jurisprudential approach.
The upshot is that local authorities are now vicariously liable for the actions of their foster carers not only henceforth but stretching back years into the past. It is important to note that this case related to events which happened a very long time ago. Normally, limitation periods stop claims being made too long after the event. For claims arising in childhood, time does not start to run until the claimant reaches adulthood, but even so the standard limitation period is only three years. Thirty plus years is exceptional, but is possible because s33 Limitation Act 1980 authorises courts to allow a case to proceed out of time where it would be only fair to do so in all the circumstances.
The same is likely to apply to other cases of past abuse while in foster care – disapplying the normal limitation period will often be the only equitable thing to do. With our recent experience of Saville and Weinstein we now understand how it can take a long time for victims to come forward to disclose abuse. In addition, some people may well have been advised previously (quite correctly at the time) that they had no case against the local authority which acted properly but unknowingly placed them with abusive carers.
From the authority’s perspective it may seem harsh that they are penalised when they did nothing wrong, but if a child is abused in public care, someone must pay, and it is now clear that the ‘someone’ is the local authority. At the moment we have no way of knowing how many potential claims there may be lurking in local authority archives. Local authorities and their insurers must be bracing themselves for more claimants to come forward and lawyers like DSD’s litigation team are readying themselves to take up the cudgels for justice for those who were abused while in so-called ‘care’.
Harvey Weinstein is used to being the centre of attention – but this week the movie mogul finds himself on all the front pages for all the wrong reasons. It seems ‘everyone knew what he was like’, but until now nobody dared to say anything. But the flood gates have opened and now allegations of sexual harassment abound. Like anyone else, Mr Weinstein is of course innocent until proven guilty, but he certainly wouldn’t be the first person to use a powerful position to bully, intimidate, harass and abuse.
Unfortunately such behaviour isn’t limited to Hollywood; it’s all too common in the workplace in the UK. Men as well as women are subject to bullying and abuse, which may be verbal, physical or sexual. People are insulted or treated unfairly on grounds of gender, race, sexual orientation, disability, age or any number of other characteristics. Inevitably such behaviour often goes unreported – victims feel powerless and vulnerable as, typically, bullies are in a position of seniority or power over them.
Let’s hope that the Weinstein case proves to be a call to action. We all need to speak out, not only if we are victims ourselves, but also – perhaps especially - if we are part of that group of ‘everyone’ (‘everyone knows what he’s like’). We can’t turn a blind eye any longer.
Lawyers have an important role to play. Victims of bullying and harassment have legal remedies; people who are unfairly dismissed or discriminated against have legal rights to redress; whistle-blowers have a right to legal protection. DSD’s specialist employment team can advise, assist and act to protect anyone who has experienced problems in the workplace.
Lawyers can also help to avoid such problems occurring at all. They can advise employers to put in place the right policies, procedures and training to ensure that all employees’ rights are safeguarded.
In the 21st century, we cannot accept bullying and abuse in the workplace any more. Better late than never, Mr Weinstein is beginning to learn that such behaviour is not OK and, in the end, even the most powerful have to answer for their actions.