Monthly Archives: March 2013

UK Adoption Reform: The Dangers of Repeating Australia’s Shame

In Australia last week, the prime minister Julie Gillard delivered an historic and exceptionally moving national apology to thousands of unwed mothers who were forced by government policies to give up their babies for adoption over several decades.

For full Huffington Post blog post from Cathy Ashley, Chief Executive of Family Rights Group, click here

Presumption of Death Bill Becomes Law

A new law has come into force that offers hope to families of those who have gone missing. The Presumption of Death Bill received Royal Assent on 26th March and is now an Act of Parliament which will help families struggling to deal with the financial legal affairs of a loved one who has disappeared.

Every year more than 2,000 people disappear for more than 12 months – many of them never return. “Missing People” campaigns and supports families of those who have gone missing.  Jo Youle, Chief Executive of  “Missing People” said “This is a momentous day for everyone who has campaigned for, and supported, the reform of presumption of death law.  We are delighted that families facing the unimaginable pain of having a missing loved one will now have access to a fair and effective system”.

The Act establishes a presumption of death law similar to the law that exists in Northern Ireland and Scotland.  The aim of the legislation is to simplify and to bring into one place a “crazy paving” of statutory provision that currently governs the legal processes that families have to negotiate to obtain an order that a missing person is presumed dead.  Only once that order is obtained, at present, can a grant of probate be applied for and the missing person’s estate dealt with on the basis that they are presumed dead. The new Act will provide for a Certificate of Presumed Death and  should make it much more straight forward for a family member to seek a declaration from the High Court that a missing person is deemed to have died.

It is likely that there will be some 30–40 declarations sought in England and Wales every year and the court will have wide powers to deal with the complicated issues that arise. Guidance is currently awaited to help solicitors and families who need to make an application under the Act.

The Act however does not enable families to manage and maintain a missing person’s affairs on the basis that they might return.  During the initial period of a disappearance families very understandably, do not want to assume that their loved one has died and during this period there is currently no statutory provision for helping families.
Ann Coffey, Chair of the All Party Parliamentary Group for Runaway and Missing Children and Adults is aware of the gap in the law and said “We will now continue to campaign for a legal guardianship, which would help relatives to cope with the complicated financial and practical affairs of a relative who has been missing for a short period of time.  The daily frustration of trying to deal with things like mortgage and insurance payments and bank accounts all adds to the stress and heartache of the families left behind”.
Sarah Young,  Partner at Ridley & Hall Solicitors in Huddersfield who specialises in dealing with the affairs of missing people said :Sarah Young, Partner at Ridley & Hall Solicitors

“I am currently acting for 4 families who are seeking a leave to swear death order.  It has been a deeply traumatic and stressful experience for them all and I hope that in the future the process will be made much easier and cheaper.  The emotional stress of coping with the disappearance of a loved one is enormous and families need all the help that they can get”.
Sarah Young is a Partner with Ridley & Hall Solicitors. She specialises in contentious probate and personal injury. Sarah has an LLM in Personal Injury Law and has a record of bringing the most complex cases to a successful conclusion.

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

Special Guardianship Orders – Are They Right For You?

Special guardianship orders were introduced in December 2005.  Its aim was to bridge the gap between a residence order and adoption as it was becoming increasingly common for family members to step into the breach when social services decided that the parents could no longer care for the children in a safe manner.

Under a residence order, the person caring for the child shares parental responsibility (the ability to make decisions relating to that child) with the parents, even though the carer has the day to day care of the child.  Therefore, if that child required a hospital procedure then all persons with parental responsibility would have to give consent.

Adoption is obviously one of the most extreme orders the court could make in respect of a child.  Under this order the parents would lose their parental responsibility and whoever the adoption order is made in favour of, would then become that child’s legal parents.  However, if a family member is caring for the child, courts have been reluctant to make an adoption order as it distorts the family tree, which could therefore cause confusion to the child as he/she grows up.

The special guardianship order was therefore introduced to allow the children to remain within their family but with more security as to their placement.  Under a special guardianship order, the person with the order has parental responsibility over and above that of the parents.  This therefore gives the carer more control than what they would receive under a residence order, but it doesn’t go to the extreme like in adoption cases and remove the parent’s parental responsibility completely.  This way the child will still know who their parents are and what relation their carer is to them.  In addition, the rules allow for the local authority to provide support to the carer, which can include financial support.

The most appropriate order will depend upon your circumstances and factors you should consider include whether the child is a relative, what support you may need now or in the future in caring for the child (both practically e.g. managing parental/sibling contact and emotionally) and your relationship with the child’s biological parents.

Samantha Sanders is a solicitor in the Care Proceedings and Adoption team.  She can be contacted by phone, 01484 538421, or by e-mail, samantha.sanders@ridleyandhall.co.uk.

After Separation Where Do Grandparents Stand With Their Grandchildren?

It is wildly recognised that due to the increase in child care fees, grandparents are coming out of retirement to care for their grandchildren so that the parents can go back to work and earn a living and provide for their family.  Unfortunately, when the relationship between the parents breaks down, the grandparents are forgotten and their contact all too frequently ceases despite the close relationship they have built up with their grandchildren.

Grandparents have always had a right to have contact with their grandchildren, however, due to court procedures, this may appear to be anything but the case.  This is due to the grandparents having to apply for permission to make an application for contact before the judge considers their substantive application.  When deciding whether to grant permission the court considers:-

  1. Whether they have a close link to the child
  2. Whether they are making the application for other purposes other than contact, and
  3. Whether the child will be at risk if the application is granted

Once they have jumped that hurdle they then have to convince the judge and the parents that it is in the best interest of the child that their application for contact is granted.

Will this Change?

Under the Family Justice Review, it is proposed that parents will be expected to draw up parenting agreements which will set out the role the grandparents will continue to play in their grandchildren’s lives.  This document could then be used as evidence if the parents cease offering the contact and an application to court is necessary.  It is hoped that this way children will grow up knowing their grandparents.

Some hoped that the review would look at removing the barrier of leave being granted before the grandparents can make their application but unfortunately that is not the case this time around but who knows what will happen in the future.

Samantha Sanders is a solicitor in the Care Proceedings and Adoption team.  She can be contacted by phone, 01484 538421, or by e-mail, samantha.sanders@ridleyandhall.co.uk.

Battling Aunt in Landmark Kinship Care Decision

For full story on BBC click here

In a landmark decision London Borough of Tower Hamlets has been struck down due to discrimination against family & friend foster carers.

Mrs X, who cannot be named for legal reasons, has won a long legal battle against Tower Hamlets.

She cares for three of her brother’s children, all of whom have special needs. The 3 children, now aged 15, 14 and 7 years all have learning difficulties, emotional problems and bed wet. The middle child also has autism, Tourette’s syndrome, features of ADHD, self harming behaviour and when he first arrived into Mrs X’s care he was doubly incontinent. The youngest child also has autism, ADHD and severe development delay, he requires constant supervision, including throughout the night and can be prone to violence, attacking other children and nursery staff.

The children’s parents were unable to look after them and the council took the children into foster care. The children were placed with professional foster carers. After three separate placements, the council asked Mrs X if she would be willing to look after the 3 children as they could not find a professional foster carer willing to take on all the children.

In 2009, at the request of the council, Mrs X gave up her professional job and financial independence, became reliant on state benefits, moved to the countryside and started to care for the children. She received very little help in caring for the children. Also the fostering allowance that she received was significantly below that which the professional foster carers received.

Due to her concern about her ability to manage with the children, the level of allowance and the lack of action taken by social service when she asked for help, Mrs X decided to instruct specialist law firm Ridley & Hall Solicitors.

Throughout 2010 detailed correspondence took place requesting help so that Mrs X would be able to cope with the children and asking the council to pay her the same allowance as they would have paid to a professional foster carer. The matter was complicated by an ongoing family court case concerning the children and who should have had parental responsibility. Support was delayed to find out the result of various reports required within the family proceedings. In September 2010, the family court decided that the local authority should have parental responsibility and granted an interim care order, which was eventually made into a full care order.

By December 2010, Mrs X was extremely concerned that she would not be able to continue caring for the children due to the level of exhaustion she felt and the lack of support. Emergency High Court judicial review proceedings were issued requesting practical support to be provided to Mrs X and that she was paid the same allowance as a professional foster carer.

In January 2011, the council agreed to fund respite care, where someone else would look after the children over a weekend to allow Mrs X a break. In addition they also agreed to fund a babysitting service. Therefore the only challenge left in the High Court case was the level of allowance the Mrs X was receiving.

Rebecca Chapman of Ridley & Hall Solicitors said,“It has to be noted that although the council agreed to pay for the support there was enormous difficulty in finding someone who would be willing to look after the children due to their special needs. I believe that the council approached over 60 agencies and did not manage to find someone to care for the children. By 2012 the council agreed to pay Mrs X’s brother, who was not the father, to provide respite on a temporary whilst they looked for a professional carer.

By around October 2012 professional respite carers had been found but this was only after the decision had been made to separate the children for respite.”

In April 2011 the council issued a new foster care policy which clearly stated that they were paying family and friends foster carers £171 per week less than professional foster carers. The council issued a further additional policy in November 2011 which stated that the £171 per week for professional foster carers was a fee/reward and family and friends carers were not eligible for the fee/reward.

Rebecca Chapman said, “I was shocked to read the council’s new policies particularly because in early 2011 the government issued guidance called Family and Friends Care: Statutory Guidance for Local Authorities which made it clear that councils should make sure family and friends carers are fully supported to care for the children placed with them and that they should not be treated unfavourably because they knew the child before they came to live with them.

“The family and friends guidance was issued at around the same time as a number of other guidance which made the same point. Although the guidance was pointed out to the local authority they decided to continue with their discriminatory policy.”

The council issued a further policy in April 2012 in order to make sure that the extra expense of looking after children with special needs was covered by paying an enhancement to the fostering allowance. However, half of the new enhancement was payable to meet the extra expense of looking after the children and the other half was a fee/reward element only payable to professional foster carers. This was on top of the £171 per week per child fee/reward element the professional foster carers were receiving under the 2 previous policies. Mrs X, as the children’s aunt, could not receive the fee/reward elements, even though she was succeeding to care for 3 difficult children where professional foster carers had failed.

The High Court heard the case in February 2013. The judgment was given on 8th March 2013 that found the council’s policies were unlawful because they discriminated against family and friends carers as they were not eligible to be paid the fee/reward part of the fostering allowance.

Mrs X commented,“I am absolutely delighted with the result. I am pleased that this judgment has recognised that family and friends carers should be treated fairly and should be paid the same amount as a professional foster carer when they are doing the same job.

I cannot thank my solicitor and barrister [Rebecca Chapman and Fiona Scolding] enough.

However I am disappointed that it has taken a High Court ruling and all the additional legal expenses to make the council do what the government directed them to do in early 2011. At this difficult economic time, I expect the legal expenses will add to the financial pressures faced by the council.”

If you require any more information please do not hesitate to contact Rebecca Chapman on 01484 538421 or rebecca.chapman@ridleyandhall.co.uk.

Accident Claims and Inheritance Disputes Deadline – 31st March 2013

Crucial reforms affecting the funding of litigation cases are coming into effect on 1st April 2013.  The Jackson Reforms, as they are called, are the biggest shakeup of the civil litigation system in England and Wales since 1999.

At the moment, for example, anyone who wants to bring a claim against the estate of someone who has died who is on a low income, may qualify for legal aid.  After 31st March 2013 legal aid will no longer be available for this kind of case.  So if you think that you might want to bring a claim and would qualify on financial grounds it’s vitally important that you should get legal advice now.

If legal aid is granted to you before the end of March then your funding will continue (unless your financial circumstances improve).  After the end of the month -  unless you can persuade a solicitor to take your case on a no win no fee basis  – you may not be able to bring a claim at all.  Sarah Young, Partner at Ridley & Hall Solicitors comments: -

“Although the legal profession is well aware of the changes ahead, very few members of the public are aware that legal aid is being withdrawn for a huge number of cases.  I specialise in inheritance disputes and I know that they can cost a lot of money – without legal aid a lot of people will struggle to bring a claim and I would urge anyone who thinks they might have a claim to get advice now.”

It’s not just inheritance disputes that are going to be affected by the reforms.  Anyone who has been injured in an accident will be familiar with no win no fee agreements (also called conditional fee agreements).  These agreements mean that if you lose your case your solicitor is not paid and if you win they are paid by the other side’s insurers who also have to pick up the tab for a success fee (which is an extra amount that your solicitor is entitled to charge for taking on the risk of being paid nothing if they lose).  At the moment insurers also pay for the accident victim’s insurance cover – this protects them against the risk of having to pay the other side’s costs if they lose.  From the 1st April 2013 the success fee and the insurance premium will have to come out of the injured person’s compensation.

In personal injury cases up to a maximum of 25% of damages may have to be paid.  In other cases, for example in inheritance disputes where there is a no win no fee agreement, up to 50% of a client’s compensation may have to be paid to their solicitor.

Sarah Young has this message: – “The obvious point to make is that if you think that you may have a case, you need to get specialist legal advice urgently and if a no win no fee agreement is the best way to fund your claim you must sign one before the 1st April if you want to receive all of your compensation.  Any agreement signed after 1st April will be subject to the new regime and you may well be worse off.  Insurance companies, who have lobbied the government intensively over these reforms, will be hugely better off.  Those who have been injured or suffered loss, through no fault of their own, will be penalised”.

Sarah Young is a Partner with Ridley and Hall solicitors. She specialises in contentious probate and personal injury. Sarah has an LLM in Personal Injury Law 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.

Doncaster Council Slammed For Childcare Services Failings

To view story in Daily Mail click here

To view story and footage in the Yorkshire Post click here

A Doncaster mother of 5 children is seeking legal advice after breaking her silence about a horrifying bungle by social services when she gave birth to her daughter Victoria on 23rd August 2011.

Kelly McWilliams, 36, is still shocked at what happened; “My midwife made a referral to social services in February 2011 when I was in the early stages of pregnancy.  Shortly after that I had a meeting with someone from social services and everything seemed to be fine.  When I was in hospital on 23rd August 2011 giving birth I couldn’t believe it when two social workers turned up and said that as soon as my baby was born she was going to be taken into care.”

Kelly’s solicitor Sarah Young of Ridley & Hall Solicitors commented: – “During the night of the 22nd/23rd August 2011, without any warning to Kelly, Doncaster Council obtained an  emergency protection order from Doncaster Magistrates’ Court.  On 23rd August they applied for an interim care order – this is a clear case of a local authority wrongfully taking a child away from her parents, given the lack of social services’ involvement before Kelly gave birth”.

No one disputes that the referral to social services should not have been made.  Kelly and her family have had difficult times:

“For several years my husband and I had been trying for another child.  Our son had tragically died aged 10 in 2008 and I had found it very difficult to cope.  I have limited mobility following a stroke in 2001 and have in the past suffered from mental health problems – but they have been in remission for 5 years.   I was confident that I would be able to cope with a new baby; I was physically and mentally in a good place and we were delighted when I became pregnant.”

Sarah Young went on to say “It was not until the 9th December 2011 that the court ordered that Kelly’s baby Victoria was to be allowed to live with her again.  She had had contact with her daughter but it was clearly a very difficult and distressing time for Kelly – the care proceedings did not end formally until the 20th February 2012 by which time Kelly had developed post traumatic stress disorder”.

A report prepared by the Children and Family Court Advisory and Support Service (CAFCASS) on 13th February 2012 found: – “There was no pre-birth assessment or initial case conference commissioned by the local authority in this matter.  Had there been these proceedings may not have been initiated.  It seems that a midwife referred matters to the local authority in February 2011 at which point it was too early to begin a pre-birth assessment and the referral then sat in the children’s assessment team until 20th July 2011 when it was allocated but no work done.  The case was then allocated to social worker  X on 18th August 2011, 3/4 days before Victoria was born.  The first contact made with mother was during her labour when she was told that her baby would be removed from her care whilst assessments were made in relation to her ability to care for Victoria”.

While she was in labour, Kelly rang a solicitor, Rebecca Croft, who ensured that baby Victoria’s dad was allowed to look after her during the case.

26 hours of social work assessments, including psychiatric and psychological evaluations were carried out which supported Kelly’s belief that she was able to be a good parent to Victoria. She was offended at how she was treated:  “I was an experienced mum and yet I had to be supervised all the time that I was caring for Victoria. That was awful, but it’s important for me to say that I am truly grateful to the children’s guardian appointed by the Court – without her support I couldn’t have got through the proceedings.”

Kelly feels angry and frustrated at how she was treated by Doncaster Social Services: – “I am constantly terrified that there will be a knock on the door and that someone will come to take Victoria away from me.  There were lots of false and hurtful allegations in the statements that the council filed at court – I managed to prove that they were false and I can’t believe that no one has to take responsibility for that”.

The legal position is that although there may have been a breach of Kelly McWilliams’ human rights under article 8 of the Human Rights Act (which protects the right to family life) the value of the claim does not justify the cost of legal proceedings.

Solicitor Sarah Young shares Kelly’s frustration: – “The law relating to claims against a local authority where they have wrongfully removed a child is aimed at concern for the child rather than the parent. If Victoria had suffered harm as a result of the removal she would have a case against Doncaster.  I am investigating whether a claim can be brought against Doncaster. My fear is that because it is her mother that has suffered post traumatic stress disorder, no remedy will be available”.

Victoria is now a happy healthy 18 month old and has a close and loving relationship with her mother.

The heavy handed nature of Doncaster’s approach is a worry for those who had hoped that they had learned lessons from the chaotic situation that had arisen in 2009 when 7 serious case reviews hit the headlines.

On 16th November 2012 a highly critical OFSTED report said that Doncaster was “not doing what is required to keep children and young people safe”.  The report said that inspectors saw “too many cases” during an inspection in October 2012 where the social work service was not doing enough to protect children.  Vulnerable children in the borough have experienced or were put at risk of “significant harm”.  OFSTED awarded the lowest possible rating for the department’s effectiveness, leadership and governance and quality of practice.

None of this comes as any surprise to Sarah Young: – “In 2009 I acted for the family of Warren Jobling, a little boy who died in respite care in Doncaster and was the subject of a serious care review.  At that time it was clear that Doncaster Social Services was in crisis.  Nothing seems to have changed and I believe that if radical steps are not taken soon there will be another tragedy in Doncaster”.
Sarah Young is a Partner with Ridley & Hall Solicitors. She specialises in contentious probate and personal injury. Sarah has an LLM in Personal Injury Law and has a record of bringing the most complex cases to a successful conclusion.

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