Legal Aid for committal proceedings

Munby P granted criminal legal aid to the alleged contemnor in respect of committal proceedings within Hague Convention proceedings on 6th March 2014. In doing so he referred back to his earlier judgment in Chelmsford County Court-v-Ramet [2014] EWHC 56 (Fam) delivered on 22 January 2014 http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Fam/2014/56.html&query=Ramet&method=boolean In that case he said "I turn to legal aid, public funding. In Re Jennifer Marie Jones [2013] EWHC 2579 (Fam), para 43, I referred to what, as I was told, seemed to be the limited availability of public funding in contempt cases. Whatever the limitations of civil funding, public funding in contempt cases is available under the criminal scheme. The key provision is regulation 9(v) of the Criminal Legal Aid (General) Regulations 2013, SI 2013/9, which says: "The following proceedings are criminal proceedings for the purposes of section 14(h) of the [Legal Aid, Sentencing and Punishment of Offenders Act 2012] (criminal proceedings) – … (v) any other proceedings that involve the determination of a criminal charge for the purposes of Article 6(1) of the European Convention on Human Rights." The effect of the decision of the Court of Appeal in Hammerton v Hammerton [2007] EWCA Civ 248, [2007] 2 FLR 1133, is that this covers all proceedings for contempt of court, whether criminal or civil in nature and whether arising in the context of criminal, civil or family proceedings." It is therefore possible to obtain criminal legal aid for an alleged contemnor even if they are not eligible on means or merits or scope for the main family proceedings in connection with which the alleged contempt occurred. Anyone representing an Applicant on committal should draw this to the attention of the alleged contemnor and of the court to ensure that the committal process is Article 6 compliant. If that is not done there must be a risk that any contempt finding will be susceptible to appeal on the basis of serious procedural irregularity within CPR 52.11(3).

Radical Islam and Care Cases

The issue of whether the personal politics or religion of a parent might form the basis for the removal of a child from, their care has ben considered by the courts in recent times. It seems to me that it is only where those religious or other views translate into views or behaviour in the child which manifest themselves in the child’s daily life such that the child’s functioning in her school/community is seriously impaired so as amount to a significant impairment of development that the threshold would be met. Or perhaps where a real and identifiable risk of the child being radicalised to the extent that they will expose themselves or be exposed to the risks of involvement in acts of violence that the threshold could be crossed. In Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, Hedley J said “society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent”; and that “significant harm is fact-specific and must retain the breadth of meaning that human fallibility may require of it” but that “it is clear that it must be something unusual; at least something more than the commonplace human failure or inadequacy”. The Supreme Court agreed with Frank Feehan QC that “many parents are hypochondriacs, many parents are criminals or benefit cheats, many parents discriminate against ethnic or sexual minorities, many parents support vile political parties or belong to unusual or militant religions. All of these follies are visited upon their children, who may well adopt or ‘model’ them in their own lives but those children could not be removed for those reasons.” A child can only be removed if the court is satisfied that the child is suffering or is likely to suffer significant harm and that the harm or likelihood of harm is attributable to the care given to the child not being what it would be reasonable to expect a parent to give. A likelihood of significant harm means no more than a real possibility that it will occur but a conclusion to that effect must be based upon a fact or facts established on a balance of probabilities. (in In re J (Children) (Care Proceedings: Threshold Criteria) [2013] UKSC 9, [2013] 2 WLR 649) By section 31(9), “harm” means “ill-treatment or the impairment of health or development...” and “development” includes “emotional...development”. The word “significant” is not defined but section 31(10) Children Act 1989 provides that “Where the question of whether harm suffered by a child is significant turns on the child’s health or development, his health or development shall be compared with that which could reasonably be expected of a similar child.” So whereas the concept of “ill-treatment” is absolute, the concept of “impairment of health or development” is relative to the health or development which could reasonably be expected of a similar child. In Re C and B (Care Order: Future Harm) [2001] 1 FLR 611, Hale LJ said, at para 28, that “a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not”. It is difficult to see how radicalisation per se could be ill-treatment. It could be that a sufficient degree of radicalisation would impair the child’s ability to function in his or her society and one could see how specific risks or harm could arise if the radicalisation progressed to involvement in acts which involved the use of or exposure to a risk of violence. Unless it reaches that level of risk or of harm though it would seem that removal of children would simply be a form of religious discrimination and societal conditioning. I don’t subscribe to the view that our society is so fragile that we cannot cope with radical religious or other views nor that a healthy democracy should contemplate interference in families whose views we disagree with.

Latest Migration Statistics

The latest provisional data from the Office for National Statistics show Net migration to the UK rose to 212,000 in the year to September 2013. Some 532,000 people immigrated to the UK in the year ending September, up from the 497,000 people who arrived during the previous year, while 320,000 emigrants left the country, down from the 343,000 the previous year. The Office for National Statistics said the net flow - the numbers moving here minus the numbers leaving the UK - rose from 154,000 in the previous year. The increase has been driven by a big increase in the number of European Union citizens coming to Britain. There was an increase in new arrivals from Poland, Spain, Italy and Portugal. The number of EU citizens arriving in the UK rose to 209,000 from 149,000 the previous year, the ONS said. But immigration of non-EU citizens decreased to 244,000 in the period, down from 269,000 the previous year. In 2012 there was a net flow of 176,000 Long-Term migrants to the UK in the year ending December 2012. 497,000 people immigrated to the UK and 321,000 emigrants left the UK and the previous falls seen since June 2011 have gone into reverse. Immigration of New Commonwealth citizens decreased significantly from 151,000 in the year ending December 2011 to 97,000. Of the 497,000 arrivals, 179,000 immigrants came to the UK for work related reasons and 181,000 people migrated away from the UK for work related reasons The number of visas issued, excluding visitor and transit visas, was 501,840 in the year ending June 2013. 562,000 National Insurance numbers (NINos) were allocated to non-UK nationals in the year to March 2013, a decrease of 6% on the year to March 2012. In 2011 Long-Term migration statistics show that 566,000 people immigrated to the UK in 2011 with 351,000 people emigrating and net migration was 215,000. In 2012 nearly half of all babies were born outside marriage/civil partnership (47.5%), compared with 47.2% in 2011 and 40.6% in 2002. The percentage of live births in England and Wales to mothers born outside the UK continued to rise in 2012, reaching 25.9% compared with 25.5% in 2011 and 17.7% in 2002. The proportion of births to mothers born outside the UK has increased every year since 1990 when it was 11.6%. Not surprisingly these figures are mirrored in the available statistics for court cases with an international element. The Annual Report of the Office of the Head of International Family Justice provides a real insight into the activities of the Office of the International Liaison Judge together with an evaluation of developments and a statistical analysis of the cases it has dealt with. The central message is the continually growing need for international judicial liaison as global families increase and the undoubted benefits that this can bring in resolving litigation. The 2012 report shows that, a. In 2012 there was a 40.5% rise in applications for assistance to 253. The requests for assistance involved 71 separate jurisdictions. This included liaison with Sudan. Of the 71 jurisdictions involved tangible assistance was given in 46. Given only 2 countries (England and Netherlands) have a permanent office as opposed to a judge alone this is very positive. b. 50% of all the cases were intra-European, 14% the Americas and Carribean, 10% Africa, 15% Middle East and Asia and 6% Australia/NZ. Within the EU the largest number of applications was in respect of Poland (14) but as Poland has not appointed a sitting judge as the IHLJ or EJN judge (same for Italy) this has impeded liaison. France, Germany, Spain and Ireland also generated significant numbers of requests. Liaison with the USA has proved easy to facilitate as they are accustomed to inter-State liaison. Good links have been made with Kenya, Nigeria and with a number of South American countries. c. The office has dealt with queries relating to public and private law children cases, relocation, inter-country adoptions, surrogacy, forced marriage and financial remedy cases as well as abductions. d. Of the requests most were 'outgoing' where the English courts were seeking assistance from another jurisdiction. Only 11% were incoming requests from other countries seeking information about our systems. e. The Pakistan Protocol has been used in a nearly 200 cases since 2003, some to achieve returns many as a protective measure in temporary leave to remove 'holiday' cases. The Cairo Declaration has not borne the fruit that the Pakistan Protocol has. The figures from the International Child Abduction and Contact Unit also show a long term upward trend of applications made in respect of in-coming and out-going applications in respect of ‘abducted children’. Applications under the 1980 Hague increased by 100% in the decade to 2008 and increased further in 2011 to 249 applications, compared with 200 applications in 2008, and 142 in 2003.

Service Abroad: The Foreign Process Section weblink

For anyone dealing with service of proceedings abroad under the EU Service Regulation or otherwise here is a useful link to the Foreign Process Section of the QBD which is the designated authority for service under the Regulation. They can provide advice on how to serve and should issue certificates of service or non-service. http://www.justice.gov.uk/courts/rcj-rolls-building/queens-bench/foreign-process

BIIR, Jurisdictional issues: Court first seised and lis pendens

In I-v-G [2013] EWHC 4017 (Fam) Mostyn J considered the working of Article 19 of BIIR and stayed English proceedings pursuant to Article 19(2) of BIIR to allow the Italian court to determine whether it was first seised of proceedings concerning the child. In the course of the judgment Mostyn J had to consider a number of important issues in relation to the operation of Article 19. Firstly he had to determine whether an order granting residence and temporary leave to remove a child was a 'final' order so as to terminate the proceedings or whether they remained in being and thus the court remained 'seised'. Mostyn J accepted our submissions that an application for temporary leave to remove was brought to an end when an order granting temporary leave to remove was made. Thus the English court was no longer seised of proceedings. The effect of this meant that proceedings issues subsequently in Italy rendered the Italian court first seised and so on the face of it the English court had to stay the proceedings brought by the mother in England, but after the father's Italian proceedings. The mother submitted that although the Italian court was chronologically first seised the father had failed to serve and therefore the Italian court was not legally first seised; Article 16(1)(a). Mostyn J accepted that (applying ECJ/CJEU case-law) that whether adequate steps to serve had been taken was a matter for the Italian court to determine. He therefore stayed the English proceedings. Other issues which he commented on were A. The need for clarity of drafting in orders with an international dimension, in particular in relation to whether the order was final or provisional B. He condemned the growing practise of post-hearing applications being made by e-mail for judges to reconsider issues determined at court. The mother has appealed and a permission hearing is listed for 19th February 2014. The full judgment can be found on BAILII at: http://www.bailii.org/ew/cases/EWHC/Fam/2013/4017.html

Hague Abduction Conventions enters into effect with Japan

Japan ratified the Convention on 24th January 2014 and it enters into force on 1st April 2014. Countries who were Members of the Hague Conference at the time the 1980 Hague Convention was adopted can subsequently ratify. This means that the Convention automatically enters into effect between that country and all other members at the relevant date. For countries who were not members at the relevant date they can accede to the Convention. Such accessions have to be accepted on a country by country basis. Hence South Korea has acceded but the Convention is not in force between UK and Korea because we have not accepted their accession. The Convention will enter into force between Japan and all Member States of the European Union on 1 April 2014: - With regards to Member States of the European Union that ratified the Convention, it will enter into force “automatically”. This applies to Austria, Belgium, Croatia, Czech Republic, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal, Slovakia, Spain, Sweden, UK. - For those Member States having acceded to the Convention, Japan would need to declare acceptance of their accession, which it has done in the case of Bulgaria, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Romania and Slovenia. You can find more accessions that Japan has accepted in the spreadsheet showing acceptances of accessions to the Child Abduction Convention which is available at the Hague Conference website (see here).

In the Matter of E: further thoughts

In my last post I analysed the President's decision in The Matter of E (A Child) [2014] EWHC 6 (Fam) in which the Sir James Munby considered the obligations imposed by the Vienna Convention on Consular Relations. One of these is that where a national is detained his consulate must be informed. Another is that where a guardian is appointed for a child the consulate must be informed. That would seem to mean that if (a) the tipstaff executes an order and takes a person into custody, (b) the court joins a foreign national child as a party that steps should be taken to inform the relevant consulate.