Damages awarded for misuse and or abuse of Section 20 By Vyonne Manuel
Following on from the misuse and or abuse of Section 20 agreements the law has been holding local authority’s liable and awarding both parents and children damages for this wrongdoing. The circumstances vary on a case by case basis; however, if your child has been wrongfully accommodated under Section 20 contact our experienced panel of childcare lawyers who will advise you on the best course of action.
Williams & Anon v London Borough of Hackney is a landmark case and one of the first where damages have been awarded under the Human Rights Act in childcare proceedings.
According to the judgment the child told police that he had been beaten by his father with a belt after one of the children was arrested on suspicion of shoplifting 8 years ago and this subsequently lead to all 8 children being wrongfully removed from their parents care.
Deputy High Court judge Sir Robert Francis QC said: ‘If ever there was a case illustrating the challenges that face children, parents, public authorities and the court when concerns are raised about the safety and welfare of the children it is this.’
When police visited the home they declared it was not in a fit state for the children to live in, and took them away. The police protection powers allowed the children to be removed from their parents care for up to 72 hours and Hackney Council in London stated that the parents’ consented to their children being accommodated by the local authority under the auspices of section 20 of the Children Act 1989. The judge disagreed stating that no valid consent was obtained as there was no evidence the parents were told to seek legal advice and because their distressed state led them to believe they would never see their children again unless they signed the agreement. Francis said that although the initial 72 was lawful, it was unlawful for the authority to keep the children beyond 72 hours.
Francis said: ‘A swift consideration of the welfare issues concluded that if some simple improvements were made to their home, the children could return home. Yet it was two months before the children returned to their parents after experiencing a variety of foster placements, some of which were of dubious quality.’
He additionally added: ‘This was undoubtedly a close family presided over by loving parents. They were extremely distressed by the continued separation from their children and constantly voiced their anxieties in that regard to the defendants. They witnessed the adverse effects of foster care on more than one of their children, one of whom was a baby who was just being breast fed.’
The parents whose children were unlawfully removed by a local authority have been awarded £10,000 each in damages for a breach of their right to a family life.
If you are a parent unfortunate enough to be going through the process of care proceedings, our panel of experienced childcare lawyers will be more than willing to assist you and make their best endeavours to ensure the safe return of your children to your care.
Has your child been wrongfully removed from your care under a Section 20 agreement?By Vyonne Manuel
What is a Section 20 Agreement?
A Section 20 agreement allows the local authority to accommodate your child on a temporary basis. This agreement must be by consent of persons with parental responsibility for the child(ren) in question. There is no legal requirement stipulating that this agreement needs to be in writing; however, the consenting parties must possess mental capacity and understand the ramifications of consenting to such an agreement. In simpler terms, the parents must understand why their child(ren) are being removed, must understand that this is a temporary measure (if the local authority wish for this to be a long term measure, an application must be made to the courts), must understand that their consent can be withdrawn at any time and that the local authority must return the child to the parents care or alternatively seek an order from the court for continued accommodation after withdrawal of consent.
Sir James Munby has recently identified four problems with the current use of Section 20:
1. Failure of councils to get informed consent from the parents from the outset.
2. How consent is recorded by local authorities. There is no requirement, in law, for the agreement to be in or evidenced by writing but Munby states, “ a prudent local authority will surely always wish to ensure that an alleged parental consent in such a case is properly recorded in writing and evidenced by the parents’ signature,”.
3. That Section 20 arrangements are allowed to continue for far too long.
4. Local authorities are reluctant to return the child to the parent(s) immediately after parental consent is withdrawn.
Munby called the misuse “not just a matter of bad practice” and insisted: “It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop.”
There has been an abundance of recent case law setting out instances where children have been wrongfully removed from the care of their parent(s). Are you a parent who has experienced this; if the answer is yes, look no further, contact GC Solicitors on 01462 483 800 and we will advise you on the best course of action and fight your corner, based on your individual experiences.
Does a Highway Authority have a duty to remove moss and algae from the footpath? By Ruth Hinchliffe
The question considered in Rollinson v Dudley MBC (2015) EWHC 3330 (QB) was whether the duty to maintain a highway extends to the removal of moss and other equivalent substances from footpaths? The answer, No.
The Claimant was walking along a footpath which had patches of moss on it. The Claimant slipped and fell, suffering injuries to his back. Initially the Claimant brought a successful claim against the Council however HHJ Brown QC held that where a plant, such as moss, puts down roots “it becomes part of the surface” meaning that the authority has a duty to ensure its removal.
This decision was successful on appeal with Haddon-Cave J holding that moss or algae by its nature is a transient rather than permanent substance; neither of which can be said to amount/comprise a disturbance or damage to the highway; and neither substance became part of the fabric of the highway.
Haddon-Cave J further argued that it would be impossible for the authority to perform such a duty : "a highway authority would be obliged to consider removing or preventing the propagation of every patch of moss or algae on every road, pavement, and pathway in the country in order to avoid being in breach of its duty to repair". He noted that "this would not be practical or sensible, let alone affordable".
Should you make a claim against your employer? By Ruth Hinchliffe
It can be difficult to make the decision of whether or not to make a claim against your employer when you have suffered an injury whilst at work. Perhaps you work for a close knit company where you have daily contact with your employer and you get on well. Your employer has paid you sick pay whilst you recover from your unfortunate injuries and has checked up on your recovery on a daily basis and so loyalty prevails…… making a personal injury claim is inconceivable.
It must however, be borne in mind that employers have a legal duty to take reasonable care for the safety of their employees. An employer amongst other factors, must choose competent staff and to train and equip them properly. An employer must provide a safe system of work and ensure that all equipment is in safe working order.
When you make a claim against your employer you are not, in practice, claiming compensation from them directly. An employer must take out indemnity insurance to cover them if someone injures themselves whilst at work.
A final point to consider is that your employer gets the profit of your work as his employee, so it is only fair that he should bear the burden if anything goes wrong due to cutting corners.
To Claim or Not to Claim - Within Your Family By Sylvia Phillips
When a family trip out in the car ends in a hospital stay, for some there is no question of making a claim against a husband, wife, son or daughter.
For others the decision is less black and white. Whilst some injuries may easily be forgiven, other injuries which may be temporarily or permanently life changing may cause a deeper vein of feelings such as anger or resentment, which seeks some sort of expression within the family dynamic. This may be through making a claim.
Injuries, whether caused by a stranger in another vehicle or a family member are what they are. They result in the same pain, loss of independence and frustrations, the same doctors’ visits and time out from hobbies or social life.
In a country where motor insurance has been compulsory for many years and covers momentary lapses in concentration or attention on the road situation, whilst blame is necessary to claim against a family member, it need not be and indeed is unlikely to be an inflammatory allegation such as ‘You crashed the car on purpose.’ The insurance would be making the payment rather than the family member.
You may be worried about the effect on a loved one’s insurance premium. This is a potential issue but bear in mind that insurers are very likely to put up the insurance of even an innocent party to a road traffic collision, just due to the very occurrence of the accident.
Of course it is not a desirable position to be in, whichever way you look at it. Each person is entitled to make up their own mind according to their own situation. Where you decide to go ahead with a claim, we will be sensitive to your situation, building on our experience of such claims and our personal approach with our clients.
Drink Driving - Not the time to be jolly! By Ian Jackson and Katrina Leach
1st December is here and Christmas is approaching fast. Everyone starts getting into the festive mood with pre-Christmas family gatherings, work parties or for some impromptu festive celebration with friends. It can be a lovely time of year but the unfortunate by-product of alcohol fuelled festivities is that the number of drink drivers increase.
However, it may surprise you to learn that a great number of drivers who are caught over the limit thought that they were safe to drive. Here we are not referring to the obvious cases where people have a few drinks and jump straight into a vehicle but to people who had taken the precaution of getting safely home and yet jump in their car a few hours later to find that they have blown over the limit.
As stated on the Drink Aware website there is no fool proof way to be sure that you will be under the limit and it is even more difficult to predict how long it takes for the alcohol to be processed through your body. Obvious factors such as weight and gender will affect your processing times, the type and amount of drink will also have an impact, along with whether you have eaten regularly. Young people tend to process alcohol slower than older people, but it also depends on a person’s metabolism.
The NHS has produced guidelines on the processing times which would undoubtedly surprise most people at how slow alcohol is actually processed, as the processing of alcohol depends on the factors mentioned above. This of course makes it very difficult to predict whether on the morning after you will be safe to drive. As a rough guideline the NHS states that it takes one hour per unit to process alcohol through the body (one unit = 10ml or 8g of pure alcohol). For example a 250ml glass of average strength wine (approximately 12%) which would be equivalent to 3 Units, would take three hours to process. Insure OK has provided their readers with the advice to “allow one hour to absorb the alcohol and then an hour for EACH unit consumed”.
What is clear is that it is very difficult to predict how much alcohol a person can drink to be safely under the legal limit. The legal limit for England and Wales is 35mg of alcohol for every 100ml of breath; 80mg of alcohol for every 100ml of blood; 107mg of alcohol for every 100ml of urine.
The law in England and Wales changed (without many even noticing) to remove what was known as the second option. This provision allowed anyone who blew between 40 and 50 in breath to replace the breath specimen with one of blood or urine. In real terms this often meant that anyone blowing 45 or less may not be prosecuted because by the time the Doctor arrived to take blood the levels in the body had dropped below the legal limit; the provision was intended to allow for the ‘perceived’ unreliability of the breath testing machines. As of April 2015 if you blow more than 40 you will be charged and face at least the minimum 12 month disqualification, this is because it is now accepted that the breath testing machines are reliable and accurate. You may still be asked to provide blood/urine if the machine is not working or if you are not at the police station, for example in hospital following an accident.
In Scotland the legal alcohol limit was lowered on the 5th December 2014 so that the legal alcohol limit for drivers is 22mg of alcohol for every 100ml of breath; 50mg of alcohol for every 100ml of blood; 67mg of alcohol for every 100ml of urine.
As part of the movement towards a common European Driving Licence and the ultimate target of banned in one member state banned in all. We have now tied up with Southern Ireland, banned in the UK banned in Ireland and vice versa.
The consequence of getting caught for drink driving is severe as stated by THINK! The statistics released by the Government in February 2015 showed that 260 people were killed in accidents where at least one driver was over the limit and some 1100 people were seriously injured. Hence why there are strict penalties if caught and these penalties can have a severe impact on the whole family.
For more road safety advice and facts on drink driving go to http://www.rospa.com; https://www.alcoholconcern.org.uk; https://www.drinkaware.co.uk; http://think.direct.gov.uk/drink-driving.html.
Lying ex-husbands! What if you believe that your other half has failed to disclose the true value of their assets? By Ben Singh
The cases of Sharland v. Sharland and Gohil v. Gohil were heard by the Supreme Court in October 2015. Mr Sharland declared that his business interests were valued between £37 to £47 million and as such, Mrs Sharland received a £10 million share of the available assets. It later became known that Mr Sharland had been dishonest, and the true value of his business interests were nearer to £150 million, meaning that Mrs Sharland only received a very low percentage of the overall assets available.
Mrs Gohil received £270,000.00 of the matrimonial assets “allegedly” available to the parties at the time of their divorce. Mr Gohil had been involved in a money laundering scheme, and had not disclosed the true value of his wealth.
The Court ruled that Mrs Sharland and Mrs Gohil had both shown that their ex-husband’s had been dishonest in their financial disclosure, and that their cases can now be reopened and the previous settlements reviewed.
These decisions are important as they emphasized the need for divorcing spouses to give full and frank disclosure on one another within any financial proceedings; they also act as a warning to any party who is considering acting in a dishonest fashion when it comes to the splitting of any matrimonial assets upon divorce.