(California Court of Appeal) – Reversed an order terminating a mother and father’s parental rights to an eight-year-old child. Remanded with directions that the juvenile court conduct a new hearing.
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Father wrongly barred from making further applications in relation to his children
Access to the court is a basic right enjoyed by all including, of course, parents who require the court to resolve disputes over arrangements for their children. Accordingly, restricting that right is a very serious step, which should only be taken in exceptional circumstances.
Regular readers of this blog may be aware of a provision tucked away in a sub-section towards the end of the Children Act 1989. Section 91(14) provides that:
“On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court.”
Section 91(14) orders are often referred to as ‘barring orders’, although technically they do not actually bar a parent from making further applications – they merely provide a further hurdle or ‘filter’ that must be passed by the parent before they can proceed with their application. The orders are usually made in cases that have a long history of litigation, and their rationale is that the case has reached the point where it would be best for all concerned, particularly the child, if there were to be a break in the litigation. Accordingly, any new application will generally only be allowed to proceed if it is considered to be absolutely necessary, in the interests of the child.
Barring orders are usually made for a set period of time. As one might imagine, once a barring order has been made it can be very difficult for a parent to persuade the court to entertain a further application before that period has expired. Barring orders are therefore a serious restriction upon the right of the parent to have access to the court, and they should therefore only be made sparingly, and after full and proper consideration.
Sometimes, however, the court can get it wrong, perhaps being too eager to protect the child from the harmful effect of further litigation. The recent case N (Children) was an example of the court getting it wrong.
The case concerned two children, now aged eight and seven. By the time the case reached the Court of Appeal this month, their parents had been involved in litigation concerning them for nearly five years. That litigation had begun in September 2014, when the mother applied for a child arrangements order, a non-molestation order and a prohibited steps order. In January 2015, the father pleaded guilty to an offence of harassment by sending abusive text messages to the mother, and was subsequently sentenced to a six-month community order. In March 2016, at what was intended to be a final hearing, the court made a child arrangements order, providing that the children lived the mother but had overnight and holiday contact with the father.
But that was far from the final hearing. The mother applied to vary the contact, and since July 2016 the father has had supervised visiting contact only. Another ‘final’ hearing took place in March 2017, at the conclusion of which the judge made an order confirming the child arrangements, including the order for supervised contact. The father appealed. His appeal was dismissed, but the judge also gave directions for the case to proceed, after the parents agreed to undergo a psychological assessment.
The assessment was carried out by a clinical psychologist, who had no concerns about the mother, but found that the father suffered from serious anger management problems.
The matter went back to the court for a directions hearing in March 2018. The father did not attend, and the hearing proceeded in his absence. The judge, Mr Justice Hayden, decided of his own volition that it was appropriate to make a barring order for two years, although he gave the father a month in which he could apply to vary the order. The father did apply, and a further hearing took place in July 2018. The father, representing himself, did not properly prepare for this hearing, although he produced a report from a chartered consultant counselling psychologist, who found no evidence that the father suffered from emotional distress outside the context of missing his children and frustration with the legal system. The judge found the report inadequate in various respects, and summarily refused the application.
The father then appealed against both the barring order and the order made in July 2018. The appeal was heard by the Court of Appeal this month, Lord Justice Baker giving the leading judgment.
Lord Justice Baker said that he understood the judge’s anxiety that the ongoing proceedings were not serving any benefit, and were risking further harm to the children’s welfare. However, the barring order should not have been made without giving the father an opportunity to make representations as to it. If the order had been properly made then it might have been appropriate to have dealt with the father’s subsequent variation application in a summary fashion. However, in the light of the irregularities in the way in which the barring order was made, the summary dismissal of the father’s application was “plainly wrong”.
Lord Justice Baker concluded:
“I regret to say … that the two hearings together represent an unwarranted infringement of the father’s rights to a fair hearing. His automatic right of access to the court was removed without notice and without giving him a proper opportunity to make representations. When he attempted to exercise the liberty to apply to vary that order, his application was misunderstood by the court and dismissed. I reach this conclusion with considerable reluctance, given Hayden J’s great experience and the strong sense of his concern for the children which emerges from the transcripts. His assessment that the ongoing proceedings were serving no purpose and not benefitting the children may well have been right. But before imposing an order under s.91(14), there are certain procedural steps which should have been followed but which were unfortunately overlooked in this case.”
Accordingly, the father’s appeal was allowed, and the barring order was set aside. The case was remitted back to the court below, for a further hearing before a different judge.
You can read the full judgment here.
The post Father wrongly barred from making further applications in relation to his children appeared first on Stowe Family Law.
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Author: John Bolch
The Sinking City of Venice
Atlantis redux
While on our first European vacation years ago, Morgen and I visited Venice, that beautiful Italian city where the streets are paved with water. We were there for only a few days, but we enjoyed every minute of it. The place oozes history, and it’s wonderfully romantic. When we took the customary gondola ride through the city’s canals, our gondolier casually pointed toward a small house and said, “Marco Polo used to live there.” And we could believe it—if it were not for the constant noise of motor boats, it would be easy to imagine that the city looked much the same way centuries ago as it does now. But it’s not quite the same as it was in Marco Polo’s time. Whatever other changes have happened, the most significant one is that the city, as our gondolier reminded us, is sinking.
Of course, the entire planet is doomed to be destroyed when the sun explodes in 500 million years or so, but I’m not losing any sleep over that. Why should I worry about Venice? It still looks OK to me, so it must be sinking very slowly, right? Well, not really. Venice is located in a lagoon on the edge of the Adriatic Sea. When Venice was founded in the year 421, the level of the Adriatic was about 5 meters (16 feet) lower than it is today. For centuries the water level rose very, very slowly, but in the last century or so the rate has increased dramatically. With each passing year, the difference between street level and water level shrinks faster. From time to time, the city gets a brief reprieve. As recently as 2005, unusual weather patterns caused Venice to experience exceptionally low tides—so low that boats could not navigate most of the city’s shallower canals. Nevertheless, the clear trend, as observed over centuries, is in a decisively downward direction. If nothing is done and the trend continues, by 2055, a significant portion of the city’s walkways, plazas, and ground-level floors will be submerged all the time.
That Sinking Feeling
For a long time I was puzzled about just what it meant for Venice to be “sinking,” because that doesn’t fit into my categories of things a city is capable of doing. This is in fact a somewhat simplistic description of a complex problem. One part of the problem is that the city is not built on a solid foundation. Venice was originally a collection of muddy islands. In order to construct buildings, workers drove millions of pilings—thin, sharpened poles made of alder trees—through the mud and into the marginally more solid base of sand and clay beneath. Oak planks were placed on top of the pilings, and on top of the planks, several thick layers of marble (which is impermeable by water) formed the foundations of the buildings. From there on up, most of the construction was done in ordinary brick or wood. At the time the buildings were constructed, the marble was well above the high water line, so there was nothing to worry about. However, over the centuries, the weight of the buildings has driven the pilings deeper into the mushy seabed. In addition, at one time there were hundreds of wells in the city, removing water from deep aquifers. Unfortunately, these aquifers had acted as a sort of balloon of water propping up the city; when it was “deflated,” the city began to sink even faster.
But the literal sinking of Venice, which averages something like a few centimeters per century, is only part of the problem. The other part is that the surrounding water level has been rising at an alarming rate. This is partly due to the effects of global warming and partly due to centuries of poor environmental management in the entire region. But in any case, the rising waters compound the sinking problem and make the net effect quite serious.
When It Rains, It Pours
Venice has always been subject to periodic flooding—mainly in winter, and especially at high tide. This is something that residents have come to regard as a fact of life, and not a terribly troublesome one; most of them get around in boats anyway. But whereas flooding used to be something that would happen a few times a year, now it happens on the order of a hundred times a year. Because the sea level has risen, even in a modest flood, the water level rises above the waterproof marble foundations of the buildings, rapidly wearing away the less-robust building materials.
In November, 1966, a particularly bad storm caused a devastating flood that put much of the city under 2 meters (over 6 feet) of water. This caused extensive damage to both buildings and the valuable artwork they contained, and began to impress upon Venetians the need to take drastic action.
In 1970, a plan was proposed that involved the installation of large, mobile gates at the three inlets of the lagoon; these would be raised as needed to keep out high water. But for the next 30 years, a series of excruciating delays prevented any significant progress from being made. There were, of course, significant engineering problems to be solved, not to mention the problem of financing such an ambitious undertaking. But political reasons, more than anything else, held up development. Many Venetians did not want to believe their city was in imminent danger—and even to the extent that they did, there was tremendous disagreement about how best to address the problem. Some wanted to address the problem at the base—to basically “jack up” the city and install new and improved foundations. Others wanted to build a series of dikes and locks around the city—the so-called “Dutch solution”—or use a different mechanism to hold back high waters.
Holding Back the Sea
At the end of 2001, a plan was finally put in motion to keep back the high waters. A project called MOSE (an acronym for Experimental Electromechanical Module in Italian, but also an allusion to Moses) involves the construction of 78 steel gates, hinged at the bottom, installed along the sea floor at the three inlets to the lagoon. The gates, which are hollow and normally filled with water, measure 20 meters wide, 3.6 meters deep, and 20 to 30 meters high. When water levels appear to be rising dangerously high, compressed air will be pumped into the gates, causing the ends to float up to (and slightly above) the surface. In effect, they will form a dynamic dam that will appear only when needed. The gates will be tall enough to hold back water quite a bit deeper than the 1966 flood.
Although construction has been underway for quite a few years and significant progress has occurred, there are still numerous problems ahead, and the completion date has been delayed repeatedly. One issue is the 5.5 billion euro (and counting) cost, and more specifically the vast portion of that sum that has disappeared due to corruption. There are also significant environmental concerns; the project was vigorously opposed by numerous environmental groups. Among their concerns is that any interference with normal tides will increase the levels of toxic chemicals such as mercury in the waters of Venice, seriously threatening both marine life and the health of people who consume the local fish. There are also basic worries about health and sanitation. Venice has no sewer system; household waste flows into the canals and is washed out into the ocean twice a day with the tides. No one is certain quite what effect the gates will have on the city’s natural waste treatment system.
An Uncertain Future
Under the most optimistic prediction, Project Moses will be fully operational by 2022, but given the city’s history of delays, few expect it to be finished that soon. And even if it works perfectly, it is not a complete or final solution. The city will continue to sink and the water level will continue to rise. Sooner or later, the gates will no longer be able to protect the city from deterioration.
In the meantime, Venice faces an uncertain and paradoxical existence. While tourism increases to record levels, the population of the city itself has plummeted. The historic old part of the city had about 184,000 residents in 1950; today, there are fewer than 55,000. A shocking percentage of Venice’s glorious old buildings stand vacant as owners move to more stable surroundings, yet real estate prices remain astronomically high, discouraging an influx of new residents. With no one to renovate and maintain the buildings, they will fall apart faster; but the more the city deteriorates, the fewer people are willing to live there and do anything about it. Project Moses may keep the floods out, but will it enable Venice to keep its head above water?
Note: This is an updated version of an article that originally appeared on Interesting Thing of the Day on July 2, 2003, and again in a slightly revised form on March 21, 2005.
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Author: Joe Kissell
4 Years of College, $0 in Debt: How Some Countries Make Higher Education Affordable
When we asked people around the world what sort of financial burden they bore for their higher education, we heard how much it varies from country to country.
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Traveling With Kids? Boy, Do We Have Some Tips for You
Hotels with playgrounds. Baby pools at the beach. We collected our best suggestions and advice for family travel, from own our travel experiences.
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A public and bitter divorce battle, there is another way – Part two
In the second instalment of “A public and bitter divorce battle, there is another way” by Senior Partner, Julian Hawkhead he looks at how arbitration is another useful tool to resolving financial issues in divorce away from the public eye.
Another route to resolving financial issues is arbitration. Arbitration, in short, is a privately funded process where your nominated independent arbitrator decides the outcome of your case by making a binding award which through the rules of arbitration is turned into a Court order.
Like private FDRs, you can choose your arbitrator or if you cannot agree who it should be, an independent body can select the arbitrator for you. The hearing will be conducted away from the Court in private offices. It is entirely confidential, and you are not constrained by the delays of the Court system or the constraints of time. It is, however, a voluntary process. Both parties must agree to enter it.
Arbitration, at times, does arouse suspicion of bias particularly concerning the politics and tactical thought processes of the relationship between the lawyer and the arbitrator chosen. This is less of a feature of private FDRs, where the views are in any event, not binding. However, as an arbitration award is a final binding decision, the fear of bias can loom larger.
The attraction for some litigants is that the “lottery of litigation” creates a level playing field and you both share in the good or bad experiences. It does, however, reflect a naive attitude towards the private FDR and arbitration processes and shows little faith in the professionalism of highly experienced lawyers. An arbitrator who showed bias would soon lose any credibility. Judges are just as capable of misunderstanding issues, having natural human biases for different circumstances or types of behaviour.
Of course, private FDR hearings and arbitration both attract additional fees. However, if you trade that cost against the saving of time (which inevitably leads to more costs), the quality of experience and decision making, then surely it is a price worth paying?
We are dedicated to finding solutions for our clients and advise on all the options available to our clients to resolve their issues in the quickest, most cost-effective and least acrimonious way. Read our section on out-of-court settlement options here.
With over 50 members of Resolution in our team and a high number of specialist accredited lawyers, we can help you find the best way to achieve your goals.
For advice on arbitration and other out of court settlements you can contact me here or our Client Care Team below.
You can read part one of this article here.
The post A public and bitter divorce battle, there is another way – Part two appeared first on Stowe Family Law.
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Author: Julian Hawkhead
Is constant tinkering harming the family justice system?
In another life I monitor and report family justice news, from a whole variety of sources. I have been doing so for more than ten years now. During that time I have seen many changes in the system (as I briefly outlined in this recent post), and many more calls for change.
In fact, sometimes it seems as if hardly a day passes by without the announcement or call for some new inquiry, review, initiative, or campaign for change, whether it be from government, MPs, the President of the Family Division, or some other interested party. In just the last couple of weeks, for example, we have had MPs calling for an inquiry into the ‘secret family courts’, the Ministry of Justice announcing a review into how the family courts protect children and parents in cases of domestic abuse, an announcement by the President of a ‘Transparency Review’, and the parent support Community Interest Company OnlyMums & OnlyDads launching a campaign to speed up the court process for dealing with child arrangements applications.
Now I don’t for one moment say that the system is perfect so can’t be improved, and I accept that most of the calls for change are perfectly well-meaning, but are they actually creating a problem? What is the effect upon the system of constant change, and constant calls for yet more change? As I think I’ve said here previously, we seem nowadays to be in a culture of ‘change for change’s sake’, as if any change must be for the better. That of course is not the case. But even if it were, we must still consider the effect of change itself upon the system, and those who work within it.
Think, for example, of the practical effect upon judges, magistrates, court staff, Cafcass officers, social workers and lawyers. They are constantly having to re-train in new procedures and working practices. Now, some of that of course goes with the job: they all have to keep up to date with new law and procedure, and always have had to. However, the rate of change these days is far greater than ever before. And we are not necessarily talking about small changes. Many of the changes are fundamental to the way that people work, for example centralising courts, transferring to online systems, and major overhauls of law and procedure. Just ‘keeping up’ is becoming a full-time job in itself.
And change seems to almost inevitably mean higher workload, adding to pressures on those working within the system, and discouraging others from doing the job. We have witnessed something similar in the education system, which has been subject to constant tinkering for many years, and now both struggles to attract new teachers and has a very high turnover, with many teachers leaving the profession early. I think we may already be finding it more difficult to attract the people we want, and the numbers we want, into the family justice system.
Another reason for the work being unattractive is that those calling for change are, either directly or indirectly, saying that things are wrong within the system, and that those working within it are not doing a good job. Constantly effectively being told that you are doing a bad job, when for the most part you are actually doing a very good job, must have an effect upon moral.
And my final point is a more general one. Constant change and calls for change lead to ineffectiveness and uncertainty.
Surely, any changes need to be given a chance to ‘bed in’ and work? The people affected by them, both those who work in the system and those who use it, should be able to become familiar with them. This process could actually take many years, decades even. Only then is the system working at ‘peak efficiency’. And yet change takes place on a much shorter timescale. We have seen this particularly in the field of children law, with significant changes to law and procedure occurring on a regular basis, and calls for change happening constantly.
I think many people view the family justice system as something that can always be improved, that can always be hewn into something better. On a broad scale, I would agree. But that does not necessarily mean that change should be happening all the time.
The post Is constant tinkering harming the family justice system? appeared first on Stowe Family Law.
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Author: John Bolch
Winds with Names
More than just a bunch of hot air
Our article about the Chinook winds discussed an unusual meteorological phenomenon, but one thing it didn’t touch on was the peculiarity of a wind having a name in the first place. That strikes me as odd, like a temperature or a humidity level or a barometric pressure having a name. I mean, I get it: we give hurricanes and certain other storms names, and that serves a useful purpose, but just calling the movement of air in a certain way at a certain time by a proper noun seems weird.
Be that as it may, we were able to find quite a few other examples of winds that have names. Here’s a representative sampling—by no means a complete list:
- Bora: A cold, north-eastern katabatic wind that blows along the east coast of the the Adriatic Sea (including Greece, Russia, and Turkey).
- Brickfielder: A hot and dry summer wind in Southern Australia.
- Cape Doctor: A dry south-easterly wind that blows over part of Western Cape Province in South Africa, so named because of its apparent effect of clearing away pollution.
- Chinook: A warm winter wind in the western United States and Canada.
- Fremantle Doctor: A cool summer sea breeze on the coast of Western Australia.
- Halny: A strong, warm föhn wind storm in the Carpathian mountains of Poland and Slovakia.
- Khamsin: A hot, sandy wind in Egypt.
- Mistral: A cold, forceful wind that blows in southern France and into the Mediterranean Sea.
- Santa Ana: A hot, dry wind, usually in autumn, in southern California and northern Mexico.
- Sirocco: A powerful wind that blows from the Sahara through North Africa and Southern Europe.
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Author: Joe Kissell
How Depression Can Mimic Credit Card Debt and How to Deal Effectively
I have to say that I really like my therapist, and that she gets me and how my mind works, and therapy with her has been so helpful for me. Sometimes, though, she shares an insight with me that speaks to me so well that I feel the need to share it with others. And that happened in our session today.
One of the things I struggle with a lot is feeling negatively about myself, and because of
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Author: Penniless Parenting
Healthy Survival Cooking
I find survivalism very fascinating. Its useful when you go camping or just to save money. But what about when a disaster really strikes? Here’s some tips from a reader on how to prepare healthy food when there is a disaster that affects your food prep abilities.
Image Source: www.gonescamping.com
When disaster strikes, you may not have the luxury of going on with your everyday cooking
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Author: Penniless Parenting