Adoption – How far will Local Authorities go?

North East Lincolnshire social workers severely criticised by judge.

Three North East Lincolnshire social workers have been the subject of severe criticism in a judgment by His Honour Judge Jack which has just been published on BAILII.

In June 2014, North East Lincolnshire were seeking a care order with a plan for the child to be adopted.  The judge threw out the application.  The judge stated that he had, “Never in over 10 years of hearing care cases, taken the view as I did in this case, that the local authority witnesses were visibly biased in their attempts to support the local authority’s case”.  He went on to say “It is very unfortunate.  I hope I never see that again.”


The comments were made in an approved judgment from Judge Jack in an application for a final care order with a view to placement for adoption of a little boy, J, who was approaching three years old.

His mother had died and the father was not in a position to care for J.

The maternal grandparents, Mr and Mrs G, had put themselves forward as carers for J.  They had had extensive involvement with him since his birth.  On numerous occasions, the local authority had placed J in their care.  They regarded them as a safe pair of hands.

Mr and Mrs G had previously had J’s elder brother, R, placed with them by the same local authority.  They had obtained a residence order for R in 2008.

Mr and Mrs G were assessed as potential carers by four social workers including Neil Swaby, Rachel Olley and Peter Nelson.  All the social workers were employed by North East Lincolnshire Council.  All the social workers decided that the grandparents could not be trusted to care for J despite their involvement with the child from birth.

The social workers were cross examined by Nigel Priestley, solicitor for the grandparents, on their reports and the judge formed a negative view of what he had heard.

In his judgment on the evidence of Neil Swaby, His Honour Judge Jack stated:-

“He was very begrudging indeed in his evidence and I have a clear impression that he was, for whatever reason, whether it was his own inclination or instructions from above, intent on saying only things which supported the local authority’s case and was very reluctant to make any concessions which would undermine that case”.

With regard to Rachel Olley, the judge stated that, “Her evidence was totally discredited in my view.”

He went on; “I had the very strong impression that the local authority witnesses were intent on playing up any factors which were unfavourable to the grandparents and playing down any factors which might be favourable.  In these circumstances, I found it very difficult to give any weight at all to their evidence.”

Commenting on the evidence of Neil Swaby and Rachel Olley, he said,“I took the view, as I have already indicated, that the local authority’s case was wholly undermined.  Their concerns appear to be grossly overstated in order to try and achieve their ends.  I have never, in over 10 yeas of hearing cases, taken the view as I did in this case, that the local authority’s witnesses were visibly biased in their attempts to support the local authority’s case.  It is very unfortunate and I hope I will never see that again”.

Having reached this decision, His Honour Judge Jack sought a further statement from Social Services about their future plans.  A further North East Lincolnshire social worker, Peter Nelson, was asked to prepare a report.  The judge concluded his report “smacks to me of the same bias that I regrettably have to say I saw from Neil Swaby and Rachel Olley”.

The judge determined that J’s best interests lay in placing him in the care of Mr and Mrs G under a child arrangements order.

Nigel Priestley, Senior Partner at Ridley & Hall Solicitors who represented Mr and Mrs G in the proceedings said:-

“I have been a child care lawyer since 1985.  I have never, in almost 30 years of child care practice, heard a Judge make comments of this nature.

“My clients were assessed by a total of four separate social workers.  Each of the assessments was negative. It is appalling that the local authority social workers could have behaved in this way.

“It was obvious to me that the assessments were seriously flawed.  One social worker appeared to have cut and pasted a section of his report from the previous social worker’s report.

“In addition to these negative assessments,  the children’s guardian, supported the local authority’s application for a final care order with a care plan for placement for adoption.

“It is quite clear to me that, without the decision in Re: B-S which highlighted the need for every realistic option to be considered before a placement order is made, the grandparents would have been in an impossible position.  They were determined to show that it was in J’s best interests to have their grandson placed in their care.

“His Honour Judge Jack is a very experienced judge.  In his judgment he made it quite clear that he “took the view that on the balancing exercise that I would have to undertake in accordance with the care of Re B-S then the positives for J in remaining within his own family far outweigh the negatives that would follow from adoption, and far outweighed any negatives which would be brought about by him remaining within this family.”

“I am delighted to say that J is thriving in his grandparents’ care!”

Recently Sir Martin Narey and the Adoption Leadership Board issued a “myth-buster” guide with regard to adoption.  This guide is designed to encourage local authorities to once again promote adoption.

The message from this case is that North East Lincolnshire required no prompting.  It would seem that they were determined to proceed down the route of adoption, whatever the cost to the child or his grandparents.

Ridley & Hall are one of England and Wales leading firms supporting ‘family and friends’ carers (kinship carers) and in challenging local authorities.

Nigel Priestley was named Kinship Care Legal Champion in 2013 by Grandparents Plus and in 2010 was awarded the Solicitor of the Year in Private Practice in the Law Society Excellence Awards

For further advice on Adoption matters, please contact the Kinship Care team at Ridley & Hall on 01484 538421 or via e-mail.

See also BBC News:

Ridley & Hall is Looking to Recruit a New Commercial Property Lawyer

An exciting opportunity has arisen for a dynamic and motivated commercial property lawyer to join a long established, forward thinking firm. The successful candidate will have a varied workload with one of the key objectives to develop and grow the current function into a successful service. If this meets your requirements, please email our recruitment inbox with your CV and a covering letter. If you have any questions, please do not hesitate to call our Practice Manager, Ruky Mahboob, on 01484 538421. No agencies please.

68 Is Too Late!

Older employees face increased risk of accidents at work.

We know as a society we are all living longer.  As life expectancy increases it is becoming more common for employees to be working past the age of 65. By 2020, a third of our workforce will be over 50.  For some this is a choice but, with the forever increasing state pension age, for others it is a necessity.

The Pensions Act 2014 was given royal assent on 14th May 2014 and is now and an Act of Parliament.  This Act allows the government to regularly review the state pension age (SPA), at least once every five years.  In the HM Treasury’s autumn statement 2013, the Chancellor said that, based around the principle that people should expect to spend a certain proportion of their adult life in retirement, the SPA would increase to 68 by the mid 2030’s and to 69 by the late 2040’s.

With an aging workforce comes the growing concern that older workers are at a real risk of suffering a serious injury at work, especially those in manual labour, working past the age of 65.

In July 2014 the Health and Safety Executive (HSE) released a report that considered health and safety for older workers.  They warned that although older workers are less likely to be involved in an accident at work, when they do have an accident is it likely to be more serious, which may lead to disability or even death.  They emphasised that although people are working longer ‘employers have the same responsibilities for health and safety for older employees as they have for all their employees.’

Although the HSE promote health and safety in the workplace the government’s priorities are blurred on the issue.  In October 2013 the government changed the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR).  They reduced the amount of major injuries required a RIDDOR report.  Some injuries that don’t require a RIDDOR report include:

  • An electrical shock leading to unconsciousness, resuscitation or admittance to hospital.
  • A temporary loss of eyesight.
  • Unconsciousness or acute illness caused by a biological agent its toxins or infected material.

A campaign called ‘68 is too late’ was launched in 2012 which is fighting to reduce the SPA.  This campaign is backed by many unions, including the Union of Construction and Allied Trades and Technicians (UCATT), a construction trade union.

Steve Murphy, General Secretary of UCATT, said: “The reduction in the requirement to report major injuries is dangerous. Many of these types of injury are potentially life changing for those involved. If companies no longer have to report them then they are less likely to take preventive measures to stop them re-occurring.”

Employers seem to be more open to employing and retaining older workers because of their broad range of skills, maturity and experience.  David Fairhurst from McDonald’s says “it might surprise people to learn that at McDonald’s we employ over 1,000 people aged 60 or above.”

To help protect older workers from an accident at work, the HSE suggest, amongst other things that employers should:

  • Review your risk assessment if anything significant changes, not just when an employee reaches a certain age.
  • Not assume that certain jobs are physically too demanding for older workers.
  • Design tasks that contain an element of manual handling in such a way that eliminate or minimise risk.

Samantha Hirst, a specialist in accident at work claims at Ridley & Hall says “The law surrounding accident at work claims changed in October 2013. The introduction of the Enterprise and Regulatory Reform Act 2013 makes more difficult for employees to bring a claim for compensation.”

She adds, “I’m concerned that the government isn’t putting enough pressure on employers with regards to health and safety for older workers who are working in physically demanding jobs, where the risk of an accident occurring is high. The message to employees is clear, anyone doing manual work shouldn’t be afraid to ask their employers to do proper risk assessments – accident prevention must be a priority for everyone.  But if you’ve had a workplace accident, don’t assume it was your fault or that you shouldn’t ‘rock the boat’ by claiming.  If your employer is to blame, their insurer should pay you the compensation to which you are entitled.”

Samantha Hirst is a paralegal in Ridley & Hall’s specialist Litigation team with years of experience in personal injury cases. For further information please contact Samantha at Ridley & Hall, Queens House, 35 Market Street, Huddersfield, HD1 2HL on 01484 538421.

Widow Who Forges Will to Get £1m Fortune May Still Inherit All

It has been reported recently that a former legal secretary, Dawn Smith, forged a Will to benefit from the entire estate of her wealthy 61 year old husband Harvey.

Smith, 47, married her husband 3 years before his death. It appears that she forged his Will, faking the signatures of her husband and witnesses. The forged Will excluded her husband’s two adult daughters from his previous marriage and made herself and her son from another relationship the sole beneficiaries of his £1 million estate.

After her husband’s death in 2012 she initially told his family that she didn’t believe that he had a Will but she later produced the paperwork leaving his £500,000 house in Darlington to her, together with a pension worth £420,000.  She has since remarried a Turkish waiter.

The deception was uncovered when a partner at the Darlington firm of solicitors, Hewitts where Dawn Smith had worked, thought it suspicious that Harvey’s adult daughters were overlooked whilst Dawn’s son was included.  Police were alerted and a handwriting expert concluded that the deceased’s signature was a forgery.

The case raises the intriguing question now as to what will happen to Harvey Smith’s estate?  Marriage revokes a Will – so any Will that he had made before his marriage to Dawn is no longer valid.  If there had been no Will the estate would have passed to Dawn under the intestacy rules.

It seems likely that she decided to forge the Will because, after their marriage, her husband made a new Will in which bequests were left to his daughters as well as to her and she wanted to avoid them being beneficiaries.  If that was the case then the forged Will is obviously invalid and the previous Will would take effect.

But, that would mean that Dawn Smith would still benefit from her late husband’s estate despite being a convicted fraudster.  The situation is even worse had he made no Will after his marriage (or if any such Will had been destroyed by Dawn Smith) because everything would then pass to her under the intestacy rules – again, despite her conviction.

Partner and contentious probate specialist, Sarah Young of Ridley & Hall Solicitors, comments:-

“Rather shockingly the legal rule of forfeiture does not help Harvey Smith’s daughters in this particular case.

The forfeiture rule applies to prevent a beneficiary from receiving benefit under a Will if he has unlawfully killed the testator (the maker of the Will) or unlawfully ‘aided, abetted, counselled or procured’ his death.  It does not extend to other crimes.  The rule also applies to intestacy.  Without knowing more of the facts of the case one can only speculate about the final outcome in this case – but it seems likely that the widow here will receive some financial benefit despite her conviction for fraud.”

Sarah Young is concerned about the wider implications in financial abuse cases:

“The same principle applies to perpetrators of financial abuse. Say, for example, someone faces criminal proceedings for having stolen money from a vulnerable elderly person. If they have been left money in a valid Will (or if they would inherit anyway under the intestacy rules) they are still be entitled to inherit their bequest after their victim dies.  As a matter of public policy this must be wrong!”

Financial abuse, particularly of the elderly, is on the rise.  The charity Action on Elder Abuse has reported a 150% increase in reports of financial abuse to their helpline in the last year; 680 calls to their helpline in 2013 showed that transactions involving £24m were reported as having been either stolen, defrauded or coerced.

Sarah Young warns:

“This is a crime that is most often perpetrated by family members and of course, they will often benefit under a Will or intestacy. For that reason, in my opinion, the forfeiture rule should be changed to prevent individuals who have been convicted of an offence of fraud from benefiting from a Will or an intestacy of their victim.”

Sarah Young is a Partner with Ridley & Hall Legal Limited and specialises in Will disputes, cases involving missing people and the Court of Protection. Sarah offers practical, friendly and cost effective advice.  She understands the sensitive nature of cases which often involve disputes between families and has a record of bringing the most complex cases to a successful conclusion.

For further information please contact Sarah Young of Ridley and Hall, Queens House, 35 Market Street, Huddersfield HD1 2HL on 01484 538421 or mobile 07860 165850.

Ridley & Hall is Looking to Recruit a New Commercial Property Lawyer

An exciting opportunity has arisen for a dynamic and motivated commercial property lawyer to join a long established, forward thinking firm. The successful candidate will have a varied workload with one of the key objectives to develop and grow the current function into a successful service. If this meets your requirements, please email our recruitment inbox with your CV and a covering letter. If you have any questions, please do not hesitate to call our Practice Manager, Ruky Mahboob, on 01484 538421. No agencies please.

Nigel Priestley Writes for The Guardian!

Nigel Priestley writes on the benefits of kinship care for the Guardian ahead of the Adoption UK AGM this weekend.

The full article on The Guardian website can be viewed here.

Nigel Priestley is a specialist solicitor at Ridley & Hall and the Adoption Legal Centre. For any legal advice regarding adoption, please contact a member of the team on 01484 538421 or by e-mail.

Want to Avoid Care Home Fees? Beware of the Pitfalls

An estimated 1 million or more people have had to sell their home to pay the cost of care fees within the last 5 years; unsurprising given the average cost of a care home is over £700 per week. Many people who are worried about this are now taking drastic action to try and avoid paying care home fees. The results are not always effective, writes Helen Dandridge, solicitor at Ridley & Hall.

“Any schemes that guarantee to protect your home from being sold to fund future care home fees should be treated with extreme caution” says Helen; “If it sounds too good to be true, it probably is.”

Helen has seen a recent case involving an elderly vulnerable lady which highlights the importance of obtaining independent legal advice from a trusted firm of solicitors before making life changing decisions.

This lady, who lived alone in the Huddersfield area, paid almost £3,000 for her property to be put into a trust. She did not need this service and undoubtedly did not understand what she was paying for. The idea behind the trust deed was to transfer the property out of her sole name, so that if she ever needed to go into a care home, her home would not have to be sold to fund care fees.

Ridley & Hall receive countless enquiries about creating trusts in relation to properties or transferring assets to a family member to protect against care home fees. Whether this option is appropriate to you depends upon your circumstances.

In this particular case, the elderly client went into a care home within weeks of signing the documentation. Her ability to understand complex legal transactions and to give clear instructions is debateable. Sadly, we will probably never know the true extent of what she was advised to do and more importantly, what she understood about the transaction she entered into.

The trust deed would never have achieved the desired outcome for this lady. It was not appropriate in her circumstances and she should never have been advised to sign the documentation. She was asked to pay the money up front and it is unlikely she will get it back.

Unfortunately, this is not an isolated case.

Many people wrongly assume that transferring their property to their loved ones will mean that the local authority will have to fund any care home fees if they need to move into a care home.

If you do not obtain specialist legal advice from a solicitor then you may have difficulties. Local firm Ridley & Hall are aware of companies who are cold calling elderly and vulnerable adults telling them they can protect their inheritance by putting their home into a trust.

If you need any advice regarding making or reviewing your will, inheritance tax planning or registering attorneys, please contact our Wills and Probate team on 01484 538421.

For further information, please see Age UK’s factsheet ‘Deprivation of Assets in the means test for care home provision‘.

Helen and some of her colleagues are running the Leeds 10km Abbey Dash in aid of Age UK on the 16th November 2014. If you would like to sponsor this worthwhile cause, please visit our JustGiving page.

Step Parents – Know Your Rights

It is common these days for parents to marry or enter into long-term relationships with someone who is not their child’s biological parent.  Step parents often develop strong bonds with children and play a significant role in their upbringing but legally the step parent has no legal standing when it comes to decisions about the child and its upbringing this can include signing consent forms for school.

Meena Kumari at Ridley & Hall explains that step parents often feel sidelined regardless of whether the non-resident parent plays an active role in the child’s life. The step parent and child relationship is often unacknowledged and can be as difficult for the child as it is for the step parent.”

Historically step parents could only acquire parental responsibility for a step child by legally adopting the child or by obtaining a residence order from the court.  The legal provisions now have been made for step parents who are married to the child’s biological parent to obtain parental responsibility for the child by either:

  1. Entering in to a parental responsibility agreement with consent of any person who has parental responsibility;
  2. By a parental responsibility order made by the court.

This of course extends to civil partners and same sex marriages can also acquire parental responsibility by agreement or order of the court.

Unmarried parents are not legally classed as step parents which means that they would need to apply for a residence order or adopt the child to acquire parental responsibility.

The effect of providing parental responsibility to a step parent does not remove parental responsibility from the absent biological parent nor does it give a greater say than the absent parent.

For the step parent it does not create a liability to pay child maintenance nor does it give automatic permission for the step parent to see the child once they have separated from the child’s mother.

For further information contact Meena Kumari of Ridley & Hall Solicitors on 01484 538421 who is Resolution accredited and a private law expert.

President of the Family Division’s Anger at Legal Aid Cuts

The President of the Family Division, Sir James Munby, was faced with a case where the parents wanted to oppose the removal of their child from their care and place him for adoption.  In circumstances like this, care proceedings would be issued and funding available for the parents, however, this is a case where care proceedings were concluded in November 2012.  When the care order was made there were concerns about the child remaining with his parents as both had learning difficulties, however, following an intense assessment and package of support the local authority’s plan was for the child to remain in his parents care with further assessments carried out in relation to the extended family.

One aspect of a final care order is that it gives the local authority parental responsibility for the child, alongside his parents, however, if they had concerns about the care the child was receiving from his parents then they had the power to remove him from his parents care.  Unfortunately in March 2014 the local authority had concerns and therefore gave the parents one month’s notice of their intention to remove the child from their care.

In these circumstances there is no automatic right to funding.   The parents need to provide details of their income to see if the are eligible for funding.  In this case the parents were £34.64 over the threshold set by the Legal Aid Agency.

This is the issue that the President had; proceedings had been brought by the local authority to separate the parents from their child, as they were not care proceedings the parents were not eligible for funding automatically and their income was too high for them to qualify for legal aid.  The parents had the option to pay for a solicitor privately but their limited income made this impossible.  The local authority had funding in place to instruct a solicitor and the child was granted funding automatically as well as he has no income.

In his judgment the President stated;

“What I have to grapple with is the profoundly disturbing fact that the parents do not qualify for legal aid but lack the financial resources to pay for legal representation in circumstances where, to speak plainly, it is unthinkable that they should have to face the local authority’s application without proper representation…..In these circumstances it is unthinkable that the parents should have to face the local authority’s application without proper representation. To require them to do so would be unconscionable; it would be unjust; it would involve a breach of their rights under Articles 6 and 8 of the [European convention on human rights]; it would be a denial of justice. The child is also entitled to a fair trial…..Thus far the state has simply washed its hands of the problem, leaving the solution to the problem which the state itself has created – for the state has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession.  This is, it might be thought, both unprincipled and unconscionable. Why should the state leave it to private individuals to ensure that the state is not in breach of [its] obligations under the convention? As Baker J said in the passage I have already quoted, “It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.”

Samantha Sanders, a lawyer at the Adoption Legal Centre, commented

“This is unfortunately something we are seeing on a daily basis; clients who require our help and support to enable their families to stay together, yet without the support of legal aid they are unable to fund it themselves.  More and more solicitors are doing the work on a pro bono basis with no guarantee that funding will ever be made available.

New guidelines were brought in so that a decision is made as soon as possible for a child, yet if funding is not available for the parents to challenge the decisions made in relation to their child, it does questions the validity of the decisions made by the court and whether they are compatible with Article 6 (right to a fair trial) and 8 (right to a family life) of the Human Rights Act.  I believe that this is an issue we will be seeing more and more as time goes on.”

The judgement of the President, Sir James Munby, in this case can be found here.

The team at the Adoption Legal Centre are specialists in advising both adopters and potential adopters. We can help when adopters are facing challenging problems. If you require legal advice, please contact us on 01484 538421 or via e-mail.

Huddersfield Solicitor Lends Support to Missing Persons’ Guardianship Law

A campaign to change the law affecting missing people is a step nearer according to Huddersfield solicitor Sarah Young, following a joint APPG (All Party Parliamentary Groups) round table meeting at the House of Commons on Tuesday 28th October 2014.

Partner Sarah Young of Ridley & Hall Solicitors was invited to speak at the event by the charity Missing People.  The APPG for missing and runaway children and adults, together with the APPG for insurance and financial services, arranged the round table meeting following the introduction of the Presumption of Death Act 2013 which came into force on 1st October 2014.  Sarah Young explains: -

“The Presumption of Death Act should make it an easier and quicker process for families to deal with a missing person’s affairs once it has been accepted that they are presumed dead.  But the Act doesn’t help families who want to manage the financial and legal problems that arise when someone is missing, and it is hoped that they may return”.  She goes on to say: -

“The charity Missing People has been campaigning since 2010 for a new guardianship system to be introduced to give families the legal right to manage a missing person’s affairs.  This could help to prevent legal action for unpaid bills and properties being repossessed”.

An obvious concern if a guardian is to be appointed is the extent to which they should be allowed to act for the missing person and what would happen if the missing person turned up.  These issues and others were aired at the round table discussion.  Sarah Young is optimistic: -

“It was very heartening that there was a broad consensus from those representing insurers, banks and the families of missing people that a system of guardianship should and could be introduced.  A Ministry of Justice consultation ends on 18th November and after that I hope that the government will be persuaded of the need to introduce primary legislation to help families at what is a desperately difficult time in their lives.”

Sarah Young is a Partner with Ridley & Hall Solicitors in Huddersfield. She specialises in contentious probate cases and has a particular interest in cases involving missing people and supports the work being done by the charity Missing People.

For further information please contact Sarah Young of Ridley and Hall, Queens House, 35 Market Street, Huddersfield HD1 2HL on her direct dial 01484 558838 or her mobile 07860 165850.