Jon Comlay, Author at Parklane Plowden

Expertise

Our Expertise

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22nd January 2025 | Parklane Plowden Pupillage Evening

We are pleased to be hosting a pupillage open evening on Wednesday 22nd January 2025 in our Newcastle Chambers starting at 6pm.  This is an informal event providing a chance to meet some of our current pupils and members, have a look around the building and listen to a few short presentations about the pupillages we have on offer, our different practice areas, as well as our selection process and how best to approach it.  If you would like to attend, please RSVP to <a href="mailto:events@parklaneplowden.co.uk" target="_blank" rel="noreferrer noopener">events@parklaneplowden.co.uk</a> by 21st January 2025.  For more information about pupillages within Chambers, see our Pupillage Guide available <a href="https://www.parklaneplowden.co.uk/app/uploads/2024/11/Pupillage-Guide-2024.pdf" target="_blank" rel="noreferrer noopener">here</a> and our Pupillage Training Programme, available <a href="https://www.parklaneplowden.co.uk/app/uploads/2024/11/Pupillage-Training-Programme-Nov-24.pdf" target="_blank" rel="noreferrer noopener">here</a>. You can also visit our <a href="https://www.parklaneplowden.co.uk/pupillages/" target="_blank" rel="noreferrer noopener">Pupillage Page</a> on the website.

Letters of Wishes

Nature of a letter of wishes  A “letter of wishes” has been described as being “a mechanism for the communication by a settlor to trustees of the settlement of non binding requests by him to take stated matters into account when exercising their discretionary powers" (see Breakspear v Ackland [2008] EWHC 220). Such a letter may be produced in relation to an inter vivos settlement or a testamentary trust. It will usually state that the wishes expressed in it are non binding.  Letters of wishes are most commonly produced in relation to the issue of how a settlor or testator would like the income and capital of a discretionary trust fund to be applied. However, they might also usefully be produced in relation to the exercise of an overriding power of appointment in relation to a flexible interest in possession trust or the exercise of an administrative power such as a power of investment or a power to add beneficiaries.  One reason that a testator might decide to create a discretionary trust of residue is because there are fraught family relationships and the testator wants to leave it to trustees to make decisions as to how the family are to benefit. They may wish to express sentiments to the trustees about family members which they would not want widely known. In such a case, the production of a detailed letter of wishes is crucial. However, even in less controversial circumstances, a letter of wishes should be produced so that there is no doubt as to what the relevant wishes of the settlor or testator were.  Although a letter of wishes is in essence a non binding document, it is important because it is a relevant consideration to be taken into account by trustees in relation to the exercise of their discretions. It was confirmed in Pitt v Holt [2013] UKSC 26 that “the settlor’s wishes are always a material consideration in the exercise of fiduciary discretions.” The better view is that the trustees must take the contents of a letter of wishes into account although they are not bound to follow it. That process will involve a consideration as to whether it is proper to follow such wishes in the interests of one or more of the beneficiaries of the trust. The trustees must still form their own view and they must not unthinkingly follow the wishes of the settlor or testator.  Whilst a letter of wishes is only one factor for trustees to take into account when considering the exercise of a discretion, in practice, most trustees will endeavour to follow those wishes if they possibly can. As is stated in Lewin on Trusts “trustees therefore rightly give great weight to the settlor’s wishes, either expressed from time to time during his lifetime or recorded, usually in documentary form, before his death.” However, that does involve interpreting those wishes accurately (see Abacus Trust Co (Isle of Man) v Barr [2003] Ch 409). Trustees should also take into account any orally expressed wishes of the settlor or testator but it may be more difficult to establish what they were, if not formally recorded.  A settlor or testator can and should update a letter of wishes from time to time. Earlier letters of wishes may be superceded by later ones as a matter of construction or they may all remain of relevance if they deal with different issues. The first letter of wishes is likely to remain of relevance in any event in determining what a settlor’s purpose was in conferring a particular power on the trustees (see Wong v Grand View Private Trust Co Ltd [2022] UKPC 47).  A letter of wishes is likely to be of diminishing importance where it was made many years previously, particularly if there has been a material change of circumstances such as a beneficiary suffering serious health or financial problems.  When might it be legitimate for trustees to decide not to follow the letter of wishes? It must be remembered that the trustees are subject to an overarching duty to administer the trust for the benefit of the beneficiaries. Therefore, one circumstance would be where those wishes are unreasonable. For example, A created a discretionary trust of residue worth £10m but indicated that he did not want any of his family to ever have access to income or capital as of right. That view was not based on anything in the beneficiaries’ circumstances which made such a view appropriate but simply A’s desire to control his family from the grave. The consequence of following his wishes would be that no use could be made of the spouse exemption and anniversary charges would be incurred, diminishing the trust fund. Another example might be if the settlor or testator wanted the trust fund to be invested in a manner which the trustees considered would prejudice the beneficiaries.  Disclosure  A beneficiary may ask the trustees to provide a copy of the letter of wishes. Trustees must proceed cautiously in that regard. The exercise of discretionary dispositive powers by trustees has traditionally been regarded as an inherently confidential process as it is in the interests of the beneficiaries of family discretionary trusts and advantageous to the due administration of such trusts that the exercise by the trustees of their powers be treated from start to finish as confidential (see Breakspear endorsing the approach in Re Londonderry’s Settlement [1965] Ch 918).  This means that trustees are usually well advised not to give voluntary disclosure of a letter of wishes. If the trustees do not disclose the letter of wishes, it is obviously far less likely that a beneficiary will seek to challenge the validity of any decision they make by reference to that letter. The trustees should also not give reasons for any decision to refuse to disclose the letter of wishes. It was confirmed in Breakspear that they are not obliged to give reasons in that regard, but, that if they give any reasons, then the Court could review the decision.  Despite this, the trustees can still choose to disclose the letter of wishes to a beneficiary if they consider disclosure to be in the best interests of the beneficiaries and the due administration of the trust. In that regard, they are not bound to follow a direction from the settlor or testator that the letter should not be disclosed.  Court application  If the trustees do not voluntarily disclose the letter of wishes, would the Court order disclosure? The traditional view was that a beneficiary had the right to call for accurate information as to the state of the trust and that the trustee had to be ready with their accounts. The beneficiary was also considered to have the right to inspect trust documents at all reasonable times and to take copies at their own expense. However, circumstances might warrant the withholding of disclosure, such as where it related to the exercise of trustees’ dispositive powers.  In Schmidt v Rosewood [2003] UKPC 26 the Privy Council held that a beneficiary did not have an automatic right to the production of trust documents but they could apply to the Court to seek disclosure of them. Whether disclosure would in fact be ordered was in the discretion of the Court. This was an aspect of the Court’s jurisdiction to supervise trusts and to intervene in their administration and it extended to discretionary beneficiaries. However, the Court still recognised that the need to protect confidentiality was one of the most important limitations to the disclosure of trust documents.  Although a letter of wishes is an important part of the trustees’ decision making process and it can be argued that disclosure would enable beneficiaries to ascertain whether trustees are acting properly, the Court will usually not order disclosure of it. In Breakspear it was stated that “it is therefore brought into existence for the sole purpose of serving and facilitating an inherently confidential purpose. It seems to me axiomatic that a document brought into existence for the sole or predominant purpose of being used in furtherance of an inherently confidential purpose is itself properly to be regarded as confidential.”  There can be exceptions to this. In Breakspear itself disclosure was ordered of the letter of wishes on the basis that it would have to be disclosed in relation to the trustees’ intended application for Court approval of the exercise of their dispositive discretions and disclosure now was likely to avoid delay and cost.  Another exception would be in relation to litigation between the trustees and beneficiaries, such as a challenge to the exercise of powers by the trustees. There the beneficiaries’ entitlement to disclosure is based on their status as litigants and not beneficiaries. In that context, relevance and necessity are the governing criteria and confidentiality is a subordinate consideration. However, the Court warned in Breakspear that the Court would adopt a robust approach to spurious litigation brought by beneficiaries as a fishing expedition simply to secure disclosure of the letter of wishes.

Welcome Back Maxine Best and Naakesha Michl

Parklane Plowden are delighted to welcome back family barristers Maxine Best and Naakesha Michl.  Maxine and Naakesha both return to Chambers on the 15th January 2025 after a period of maternity leave and will be accepting instructions in family law children matters.  To instruct either Maxine or Naakesha, please contact the family clerking team on <a href="mailto:familyclerks@parklaneplowden.co.uk" target="_blank" rel="noreferrer noopener">familyclerks@parklaneplowden.co.uk</a> or call 0330 390 4303.  You can find out more about Maxine and her practice <a href="https://www.parklaneplowden.co.uk/our-barristers/maxine-best/" target="_blank" rel="noreferrer noopener">here</a>, and Naakesha and her practice <a href="https://www.parklaneplowden.co.uk/our-barristers/naakesha-michl/" target="_blank" rel="noreferrer noopener">here</a>.

Hussain. Again. Taxi Credit Hire in 2024.

I recently represented the Defendant in Mazahar Hussain v EUI Limited[2024] EWCC 16. A copy of the judgment handed down by HHJ Malek in Bradford is available here:  <a href="https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/Misc/2024/CC16.html&query=(Hussain)+AND+(EUI)" target="_blank" rel="noreferrer noopener">https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/Misc/2024/CC16.html&query=(Hussain)+AND+(EUI)</a>  The judgment provides a thorough guide to the application of the principles set out in Hussain v EUI [2019] EWHC 2647 (QB).  The Claimant, a self-employed taxi driver, sought damages for various heads of loss. The claims for the pre-accident value of his vehicle and PSLA were unremarkable. The judge dismissed a claim for storage and recovery in its entirety.  The main head of loss related to a claim for credit hire charges for a plated vehicle in the sum of £33,140.52. The Claimant hired for a period of 162 days at at a daily rate of £203.46 including CDW and VAT. The Claimant had actually replaced the damaged vehicle within about five weeks of the date of the accident but continued to hire due to difficulties in getting the new vehicle plated by the local authority.  The Claimant did not assert impecuniosity and provided no financial disclosure. He asserted that he required a vehicle to continue with his employment and for social use.  The Claimant asserted that he fell into the first of the Hussain exceptions in that he risked losing future business if he did not continue to work. In support of that assertion, he relied upon a letter from his taxi base which suggested that he would permanently lose his place on the base if he was absent for more than seven days.  The Defendant argued that the Claimant should be restricted to loss of profit (zero, in the absence of financial disclosure) and BHR for a non-plated vehicle for the period until the Claimant’s own vehicle was replaced. The Defendant argued that the Claimant did not fall into any of the Hussain exceptions such that he was entitled to recover the cost of hiring a taxi.  In relation to the risk of losing future business, the judge held:  11. In my judgment there are a number of steps that need to be taken. The starting point requires an understanding of the Claimant’s profitability prior to the accident. That enables a calculation to be made of the pro-rata loss of profit over the relevant period. The next step in the calculation is to estimate the hypothetical loss of profit that might arise from the fact that by not providing his services a professional driver risks the permanent impairment of his trade.  12. In the case of a self-employed professional private hire taxi driver plying his trade, whether by using the services of one or more taxi “bases” or not, requires the consideration of two things. The first, and easiest to work out, is the profitability of his or her trade. The next is the likelihood that his business (of being a self-employed private hire taxi driver) will be permanently impaired. This involves not only a consideration of whether or not he may be “dropped” by one “base”, but also whether or not he is able to move to another “base” or take advantage of an online platform such as Uber.  13. Another, and perhaps better, way of looking at the same thing is to ask how long is it reasonable for a business to continue to operate at a loss (by for example hiring a vehicle) in order to ensure that future business is not permanently impaired? The answer to the question will depend on (a) how profitable the business is, (b) the size of the loss, and of course (c) the likelihood that the business would be permanently impaired absent the mitigation. Clearly, the less profitable the business and/or the greater the loss (i.e. greater the cost of hire) the less likely it is to be a reasonable course of action. Likewise, if there is little likelihood that the business will be permanently impaired then the less reasonable it will be to spend significant sums in mitigation.  14. It might, fairly, be said that the approach I have set out above is overly technical and no professional driver would address his mind to these matters in the way that I have set out. Whilst I accept that the way I have set out the considerations might be seen as overly theoretical I think it does a disservice to professional drivers to suggest that they are not able to address their minds to these issues. Any businessman who is faced with the dilemma of having to operate at a loss in order to ensure that his business is not permanently affected will give careful consideration to the profitability of the business, the size and duration of the loss and the likelihood that, absent running at a loss for a period of time, the business will be permanently impaired. Whilst s/he may not give express voice or set out each separate consideration in the way that I have I am sure that no rational or reasonable decision can be made absent such considerations. Allied to that I also accept that claimants who find themselves the victims of acts of negligence are not expected to weigh matters to “a nicety” when attempting to mitigate their losses. However, they will, as a matter of logic if nothing else, have had, at the very least, to have given some thought to all of these matters before s/he can be heard to say that s/he acted in mitigation.  15. Neither will a bare assertion that the claimant has thought about mitigation suffice. The court will need to understand whether the proposed course of action taken by a claimant is an act of reasonable mitigation bearing in mind the individual circumstances. The profitability and likelihood of permanent impairment of the business are key to making such an assessment and, accordingly, a claimant should come to court fully prepared to evidence these matters.  16. In this case the Claimant provides absolutely no financial information or evidence of his profit (or hypothetical loss of profit in the event his trade was compromised) or even hint at having given this any thought before opting to hire a vehicle which would cost him £203.46 per day. Accordingly, he cannot hope to persuade a court that the first exception in Hussain applies to him.  With regard to the letter from the taxi company:  17. Even if I am wrong about the above and the Claimant need not evidence his profitability as a self-employed driver, the evidence that he does provide, which appears to be aimed at demonstrating that his future trading would be compromised, is woefully inadequate. All that the Claimant is able to muster by way of evidence is a letter from “Barkerend Taxis” addressed to him in which it is said:  “We put you on notice that you are required to work with a licensed vehicle that is in a suitable condition with the relevant licensing documentation within the next 7 days. If you do not return to work within the prescribed 7 days you will be disconnected from our dispatch system. A driver who has been disconnected, cannot rejoin on a later date”.  18. As a starting point, it seems to me to be inherently unlikely that Barkerend Taxis would seek to end its relationship (and permanently so) with a driver (who on the evidence had been with them for some 8-9 years) because he was unable to provide his services as a taxi-driver for more than 7 days. Not only would this mean that the Claimant could not be on holiday, for example, for more than 7 days without losing his position (again inherently unlikely), but Barkerend Taxi’s position (as set out in the letter appended to the Claimant’s witness statement) is implausible to say the least. Barkerend Taxis, on the evidence, appear to work as a conventional taxi “base” operating a “dispatch system”. Such businesses, of which fact I am able to take judicial notice, apply a charge or license fee to each taxi driver working with them with such fees being colloquially referred to as a “radio fee” and charged, typically, on weekly or monthly basis. The income of these businesses is derived directly from the “radio fees” that they charge and telling a driver that s/he cannot return if s/he is absent for more than 7 days would, on the face of it, be an act of self- harm resulting, as it would, in the loss of revenue. There may, of course, be good reasons as to why a taxi base business may wish to end a relationship with a taxi-driver even if it results in a loss of revenue. In this case it is said by Mr. Hussain (and notably not Barkerend Taxis) that the reason why Barkerend Taxis would not want to continue their business relationship with the Claimant if he was not available to drive for more than 7 days is because they “needed to have sufficient number of drivers available to maintain their contracts and service levels...”. The difficulty with this is that this is, again, inherently implausible. If Barkerend Taxis were so busy, as seems to be the implication, that the unavailability of even one driver for more than 7 days, would jeopardise their “contracts” and service levels then what could they hope to gain by permanently excluding an otherwise good driver? This would clearly just make matters worse for them.  19. Given what I say above I treat the letter from Barkerend Taxis to the Claimant with some caution. In addition, the letter relied upon by the Claimant appears to be from “Barkerend Taxis” (it being unclear whether this is a company, sole trader or partnership business), signed by a “A M khan” who is otherwise unidentified (either by reference to his full name, address, or relationship with Barkerend Taxis) and is undated.  20. Further, the letter was received (on the Claimant’s own evidence) by him 2-3 days after he had his accident. It was the Claimant’s evidence that he had, previous to the receipt of the letter in question, been unaware that he was at risk of losing his position with Barkerend Taxis if he was unavailable to work for more than 7 days and had not previously ever received such a “notice”. If the letter was received 3 days after the accident then the Claimant had already entered into a hire agreement by this stage. If it was received on the second day then it was received on the day that he entered into hire, and in all likelihood, after he had made the decision to go into hire having, more than likely, already set the mechanics of the hire up. On the balance of probabilities the letter from Barkerend Taxis is unlikely to have been the operative cause of the Claimant entering into a credit hire agreement.  21. More fundamentally, I agree with Mr. Richmond that the letter seems to be an attempted unenforceable unilateral variation of the contract (whatever the exact terms of the latter may have been) between the Claimant and Barkerend Taxis. However, this is not the same as an argument on the enforceability of a hire agreement, but rather the court needs to ask itself whether or not the Claimant acted reasonably in relying upon the letter that he received, irrespective of the legal merits of it. I accept that the Claimant may not have appreciated the legal nuances of the position that he found himself in. However, it seems to me perfectly reasonable to expect him to have taken legal advice or at the very least queried the contents of the letter with the author – after all a valuable future relationship (apparently worth preserving even at the expenditure of thousands of pounds on credit hire) was at stake. On his own evidence the Claimant did neither. Had the Claimant taken legal advice it is likely that such advice would have been to the effect that the threatened unilateral change to his contract with Barkerend Taxis was unenforceable.  Accordingly, the Claimant did not fall into the first Hussain exception. He could not recover the cost of hiring a plated vehicle and was only entitled to the non-plated BHR for whatever might be the appropriate period.  The judge accepted that any delays in relation to licensing the Claimant’s new vehicle were irrelevant. The Claimant had a new vehicle which he could use for social purposes by five weeks post-accident. It was appropriate to restrict any hire charges to that period.  The judge awarded £2,162.75 for hire. Overall, the Claimant failed to beat a Part 36 offer made some time earlier by the Defendant and costs consequences followed.  The decision is not binding but is sufficiently thorough to provide sensible guidance in cases where similar facts arise.  Many thanks to Jess Wong at Horwich Farrelly for her instructions and for her sensible approach throughout.  If you would like to discuss the case or similar cases, then please feel free to contact me in chambers on 0113 228 5000. If you would like to instruct someone from the PLP credit hire team generally then please get in touch with the clerks on 0330 390 4301.

Justice Is Seen to be Done – High Court Considers Fairness of Counsel’s Interactions with Opposition

F v M & Z [2024] EWHC 3190 (Fam)  Avaia Williams, a first six pupil under the supervision of Sara Anning and Rebecca Musgrove, summarises the recent High Court case of F v M & Z [2024] EWHC 3190 (Fam).  The High Court tackled a critical issue of procedural fairness, examining whether a barrister’s prior interactions with the opposing party compromised the perception of justice in family law proceedings.  The case involved a father’s appeal against a Child Arrangements Order allowing the mother to relocate with their child to Hungary. The father argued that his previous interactions with the mother’s counsel, including sharing case materials and discussions about instruction, created a conflict of interest and undermined the fairness of the proceedings.  Mr Justice Hayden ruled that the professional engagement, even if limited, posed a sufficient risk of perceived unfairness, stating:  “The weight of the professional obligation is to avoid the appearance or risk of unfairness and, in the time-honoured phrase, for justice not only to be done but to be seen to be done.  This judgment highlights the significance of maintaining procedural fairness and the ethical responsibilities of legal professionals. It serves as a reminder that even the perception of unfairness can undermine judicial integrity, necessitating rigorous adherence to ethical and procedural safeguards in family law.  For the full summary and commentary, visit <a href="https://www.familylawweek.co.uk/judgments/f-v-m-z-2024-ewhc-3190-fam/" target="_blank" rel="noreferrer noopener">Family Law Week</a>.  The full judgment is available on <a href="https://www.bailii.org/ew/cases/EWHC/Fam/2024/3190.html" target="_blank" rel="noreferrer noopener">BAILII</a>.

Harrogate & District Law Society Family Finance Talk

Join three members of Parklane Plowden Chambers as they share their knowledge on Family Finance Law.  Harrogate & District Law Society is holding a talk at the Cedar Court Hotel, where <a href="https://www.parklaneplowden.co.uk/our-barristers/naomi-hartridge/" target="_blank" rel="noreferrer noopener">Naomi Hartridge</a> will be speaking on Conduct in Financial Remedy Proceedings, <a href="https://www.parklaneplowden.co.uk/our-barristers/paul-edwards/" target="_blank" rel="noreferrer noopener">Paul Edwards</a> on Pre and Post Nuptual Agreements, and <a href="https://www.parklaneplowden.co.uk/our-barristers/giorgia-sessi/" target="_blank" rel="noreferrer noopener">Giorgia Sessi</a> on Enforcement of Financial Remedy Orders.  Come along and expand your knowledge in a friendly and welcoming environment. Don't miss out on this opportunity to engage with like-minded individuals and gain valuable insights.  Date: Tuesday, January 21, 2025  Time: 3 - 5pm  Location: <a href="https://cedarcourthotels.co.uk/hotels/harrogate/" target="_blank" rel="noreferrer noopener">Cedar Court Hotel</a>, Park Parade, Harrogate, HG1 5AH  Cost: £10.00 and £20.00 for non-members  How to book your place: Please book using the Eventbrite link below:  <a href="https://www.eventbrite.co.uk/e/harrogate-district-law-society-family-finance-talk-tickets-1110364613449?aff=oddtdtcreator" target="_blank" rel="noreferrer noopener">Harrogate & District Law Society Family Finance Talk</a>

Compassion vs Culpability: Morris v Morris & Ors [2024] EWHC 2554 (Ch)

Background:  Myra Morris was a 73-year-old woman with a degenerative neurological disorder that had no cure. She flew to Switzerland to attend the Pegasos clinic to end her life with medical assistance. She travelled with her husband, son, daughter, and sister. Myra therefore ended her own life with the assistance of her husband, and consequently an assisted dying offence was made out and the Forfeiture Act applied. Myra’s husband Mr Philip Morris applied for relief under section 2(2) of the Forfeiture Act 1982 in order to benefit from his late wife Myra’s estate.  Law:  Section 2 of the Suicide Act 1961 states that an offence will be committed if a person:  <ol class="wp-block-list"> <li>Encourages or assists suicide or attempted suicide of another person, and </li>  <li>The person intended to encourage or assist suicide or an attempted suicide.</li> </ol>  However, section 2(4) makes it clear that no proceedings will be brought against a person for the offence unless the DPP has provided consent.  Section 1 Forfeiture Act 1982 states that ‘Anyone involved in the unlawful killing of another will be prevented from acquiring a benefit from that killing’.  Section 2 Forfeiture Act 1982 provides the exception. The court can modify the effect of the forfeiture rule if it is “satisfied that, having regard to the conduct of the offender and of the deceased and to such other circumstances as appear to the court to be material, the justice of the case requires the effect of the rule to be so modified in that case”.  Where an application for relief is granted under section 2 of the Act, families will be able to inherit the estate of the deceased.  Issues:  The issues in the case were:  <ol class="wp-block-list"> <li>To what extent will the witness statement of the deceased absolve family members of suggestions of undue influence/pressure/encouragement? </li>  <li>What is the risk of prosecution for those involved in assisted dying? </li>  <li>Will involvement in the death bar family members from benefitting from the inheritance of the deceased under the Forfeiture Act 1982? </li> </ol>  Decision:  Mr Justice Trower held:  <ol class="wp-block-list"> <li>Myra’s witness statement made shortly before she died was of “particular importance”. She outlined the “intolerable nature of her life”. This evidence led to the conclusion that merely being present at another’s death (Myra’s son, daughter and sister) will be insufficient to amount to a section 2(1) Suicide Act offence. This is because they were not directly involved in Myra’s plans to go to Switzerland. They tried to dissuade her, but she was determined to proceed. Mr Morris accompanying her to Switzerland, completing necessary paperwork and reporting his own involvement was sufficient to make out a section 2(1) offence. This was the case despite no encouragement and the fact that Myra would have gone to Switzerland anyway. </li>  <li>The courts will adopt the Policy for Prosecutors in Respect of Cases of Encouraging/Assisting Suicide guidance. This is attached here: <a href="https://www.cps.gov.uk/sites/default/files/documents/legal_guidance/assisted-suicide-policy.pdf">assisted-suicide-policy.pdf</a> The Policy Guidance lists 16 factors to consider in favour of prosecution. The court will weigh up the factors present, against factors listed against prosecution. Public interest remains a high consideration following Dunbar v Plant. Bringing charges against family members who were assisting the deceased to fulfil a wish is not likely to be in the public interest. </li>  <li>A judge will look at the guidance above as well as “the degree of moral culpability for what has happened.” The approach of moral culpability looks at the state of mind of the ‘offender’ – here, this was Myra’s husband, Mr Morris. Mr Justice Trower concluded that there was no moral culpability in the case because Mr Morris was “independently financially comfortable” and was not claiming relief for improper reasons. Therefore, the forfeiture rule was modified. Its application was excluded in full. </li> </ol>  Analysis:  This case emphasises that the element of culpability or blameworthiness is not a strong consideration for coroners when deciding unlawful killings. Compared to criminal proceedings, the civil courts will look at whether ‘offenders’ – i.e. those who assisted the deceased – are instead motivated by compassion. Indeed, compassion as a motivation is a key consideration in the Policy Guidance at paragraph 45.  The reasons for compassion will also be considered. In this case, these included the type of relationship, the length of relationship, and the determination of the deceased. The court had an understanding that Myra’s “determination to proceed” was “highly relevant” when considering prosecution.  For those practicing in coronial law, this case is useful when considering possible conclusions in inquests. Even if elements of assisted dying are made out, a conclusion of unlawful killing may not be necessary. Short term conclusions are not compulsory in inquests and, in situations where context about compassion is key, a narrative conclusion may be more appropriate. The legality of the death does not require comment.  If and until the Assisted Dying Bill is passed, coroners cannot conclude ‘assisted dying’ in inquests. Therefore, a compassionate approach may instead be adopted to reflect the case law.  The full judgment can be found here: <a href="https://www.bailii.org/ew/cases/EWHC/Ch/2024/2554.html">Morris v Morris & Ors [2024] EWHC 2554 (Ch) (09 October 2024)</a>.

May Martin Successfully Defends Disability Discrimination Claim in the Employment Tribunal

May Martin has successfully defended Gateshead Health NHS Foundation Trust against a claim for disability discrimination following a five-day hearing in the Newcastle Employment Tribunal.  The Claimant brought claims of failure to make reasonable adjustments and s.15 ‘discrimination because of something arising’. The issues in the case centred around the Trust’s proposed return-to-work plan for the Claimant.  The Claimant, who had been away from her substantive post as a midwife for a significant period, contended that the proposed plan was punitive and put her at a disadvantage because it required her to rotate around various midwifery departments.  The Trust contended that the return-to-work plan was supportive and was reasonable given, amongst other things, the period of absence from clinical duties and the need for the Trust to assure itself of the Claimant’s competence and safety.  The Tribunal dismissed the Claimant’s claims. It found that the Claimant was not placed at a disadvantage by the proposed return-to-work plan. It also found that the Trust had acted proportionately in pursuance of its legitimate aims of (1) ensuring operational efficiency; (2) ensuring the needs of the service could be met; and (3) ensuring the health, safety, and welfare of its staff and patients.  May was instructed by Gabriella Jobling of Capsticks solicitors.

13th March | Agricultural Conference, The Queens Hotel, Leeds

Please note that this event has now reached capacity - if you would like to be added to the reserve list, please contact our events team at <a href="mailto:events@parklaneplowden.co.uk" target="_blank" rel="noreferrer noopener">events@parklaneplowden.co.uk</a>  Join our specialist barristers at the PLP Agriculture Conference to be held at the Queens Hotel on Thursday, 13th March. This event will be of interest to all professionals advising farmers and it is particularly topical given the challenges currently facing agriculture following the Budget.  Our speakers will include <a href="https://www.muckle-llp.com/our-people/david-towns/" target="_blank" rel="noreferrer noopener">David J. Towns</a> of Muckles who is a leading solicitor advising in the agricultural sector.  <h2 class="wp-block-heading">Programme</h2>  <ul class="wp-block-list"> <li>12:00 - 13:15: Registration and lunch </li>  <li>13:15 - 13:30: Welcome </li>  <li>13:30 - 14:00: Sarah Harrison APR and BPR </li>  <li>14:00 - 14:30: David J. Towns Challenges Facing Farming </li>  <li>14:30 - 15:00: Sean Kelly Agricultural Partnerships </li>  <li>15:00 - 15:30: Tea Break </li>  <li>15:30 - 16:00: Greg Pipe Agricultural Companies </li>  <li>16:00 - 16:30: Julia Nelson Farmers and Divorce </li>  <li>16:30 onward: Networking and Drinks</li> </ul>  The price per delegate is £75.00 + VAT and includes lunch, afternoon refreshments and a post-conference drinks reception.  If you would like to attend this event, please contact our events team at <a href="mailto:events@parklaneplowden.co.uk" target="_blank" rel="noreferrer noopener">events@parklaneplowden.co.uk</a> to register.

Practice and Procedure – PLWG Best Practice: A Guide

Moving onto the third article in a series covering the Public Law Working Group’s recommendations for best practice for adoption, we consider Chapter 3 of the PLWG report. This section covers a wide area of issue regarding practices and procedures in adoption proceedings. The current practices are often slow, confusing, and, in any event, distressing for those involved. This chapter seeks to improve best practice within the current framework, and advocates for reconsideration of the law where longer term issues need addressing.  As with all articles in this series, this will follow the general chronology and sub-headings of the report to ensure consistency and to break the report down into a more bite sized and user-friendly guide as to what the report recommends.  To avoid confusion with the duplication of headings and sub-headings, Chapter 3 of the PLWG report sets out the current practice and procedure, and notes the problems with these, and then, later in the report, under headings named the same, makes specific recommendations – this format has been followed within this article.  Background  Placement and adoption applications are currently governed by the Adoption and Children Act 2002, the Family Procedure Rules, and the Adoption Agency Regulations. In the past 20 years, there have been no substantial or material changes to the law or procedure for adoption.  Most of the recommendations in the report related to detail of the process and procedures, rather than the substances. An area where concern is continually raised is applications for leave to oppose adoption orders, providing parents the ability to oppose an adoption order when they are already placed for adoption. The overwhelming majority of these cases fail, and some have suggested removing this ability to oppose; others have pointed out that legal aid changes mean parents may now be assisted to realistically oppose applications.  Another common area of concern raised to the PLWG is that regarding Rule 19 applications (pursuant to FPR r14.21), notably with respect to wider family in relinquished baby cases.  Finally, specific attention has been given to the issues raised in Somerset County Council v (1) NHS Somerset Clinical Commissioning Group and (2) The Primary Cohort Children [2021] EWHC 3004. Recommendations are also made from the Cumbria Child Safeguarding Practice Review and Child Safeguarding Practice Review Panel.  Applications to Oppose Adoption Orders  Where a placement order has been made, the next steps is to place the child for adoption. This can be a very long process, for some there will be no placement found (often resulting in a revocation application).  Once the child is placed and sufficient time has passed, an adoption application will follow. Notwithstanding there being a placement order, the parents will be served with the adoption application, including offering the chance to oppose the application.  Many parents, quite understandably and obviously, tick ‘yes’.  Per s.47(7) ACA 2002, the court can only allow an application to oppose if there has been a change in circumstances since the placement order. This requires a two stage test. First, there must be a change in circumstances, but, and crucially, secondly, the court must be satisfied in any event that it is in the child’s best interests to grant to application, considering the child’s entire life. If, and it is a big if, the parents are granted leave to oppose, the application becomes fully contested.  Almost all parents are unrepresented at the time  off service of the adoption application. Parents will unlikely be aware of the tests involved, nor will they necessarily understand the process to oppose, many parents failing to file a specific application (thought Judges often do not insist on compliance due to the circumstances).  Given the circumstances, many parents do oppose the adoption order without considering their case, resultingly, the majority fail. As the PLWG report note:  “Many judges have contacted the group to express concern that this process is inhumane and damaging. They consider it creates false hope and further pain for birth parents at the same time as delay for the children.”  Given these applications are permitted by statute, any significant change would require Parliament to amend the legislation. The Working Group recommend that it may be beneficial to wait to see whether there is any impact from the changes to legal aid funding for parents opposing application will have any significant change.  Applications to Oppose – Notification of Fathers and Wider Family  Ss.19-20 ACA 2002 provides that, a mother who relinquishes a child may consent to their adoption. There is a procedural issue whereby putative fathers and wider family members are not routinely notified of the application.  s.19 provides that a child may be placed for adoption where each parent has consented to the adoption. A parent, pursuant to s.52(6), means a parent with parental responsibility. The overriding principles in s.1 are fundamental to adoption applications, notably, the Court must have regard to the welfare checklist, including the child’s relationship with relatives. Such relatives being defined in s.144 as grandparents, siblings, aunts and uncles.  FPR r14.21 provides*:  “Where no proceedings have started an adoption agency or local authority may ask the Court for directions on the need to give a father without parental responsibility notice of the intention to place a child for adoption.<a></a><a></a>”  *It should be noted that the online versions of the FPR note applications must be made to the High Court under the inherent jurisdiction, this has been removed by virtue of the Family Procedure (Amendment) Rules 2020 No.135, but this change has not been reflected in the online version of the Rules.  The procedural lacuna arises from the reference only to fathers without parental responsibility, there being no reference to any wider family members. As such, an adoption agency must have regard to the child’s welfare with the wider family, but there is no clear pathway to seek directions on this issue.  The Court of Appeal grappled with this issue in A, B and C (Adoption: Notification of Fathers and Relatives) [2020] EWCA Civ 4, noting that the welfare of the child is not the key test, rather, it is an exercise of balancing the rights of the family members and the child, whilst welfare plays an important role, the Article 6 and 8 rights of those who can establish potential family life will be a vital consideration.  Placement Applications  A placement application will often be made alongside care proceedings. S.22 ACA 2002 requires a Local Authority to issue such proceedings if:  <ol class="wp-block-list"> <li>The child is placed for adoption or is accommodated;</li>  <li>No adoption agency is authorised to place the child for adoption;</li>  <li>The child has no parent or guardian, or the child is suffering, or at risk of suffering, significant harm (s.31(2) CA 1989); and</li>  <li>The Local Authority is satisfied the child should be placed for adoption.</li> </ol>  There are exceptions to the above, notably where the child is living with somebody who has already given notice to adopt the child (s.22(5) ACA 2002).  The placement application is made via Form A50, along with: the child’s birth certificate, a statement of facts giving detail about the case, any relevant Order, any parental consent document.  The Local Authority must also prepare an Annex B and this is governed by FPR PD14C. It provides that an Annex B should contain three distinct sections, providing sufficient information as to the following.  Section A: Report and Matters for Proceedings – This should include the details of the author of the Annex B, including their qualifications and experience. Information should also be given as to whether there are others who should be made respondents to the proceedings.  Section B: Child and Birth Family – This section is designed to provide information to the Court, adopters, and importantly the child, as to their background, likes, dislikes, and siblings. There is also information provided about the parents of the child (including a photograph of them). Further information is provide as to the child’s wider relationships, their wishes and feelings, and contact arrangements leading up to and following adoption.  Section C: Recommendations – This section is for the Local Authority to set out their case for what should happen to the child, evidently noting the merits of the placement order and future contact.  Whilst placement applications are often made within care proceedings, and they are often dealt with alongside the care case, they remain distinct proceedings. Placement Orders, if made, will very likely be made at the final hearing in the care case, such that a Final Care Order and Placement Order will be made on the same day. Resultingly, most early Case Management Orders now provide directions to a Local Authority in respect of issuing placement applications.  It is extremely time intensive for Local Authorities to issue placement applications, with a separate A50 and supporting documentation being required for each child, as opposed to applications for care orders which can be made ‘in bulk’. Further, the Local Authority plan for adoption must be ratified by the Agency Decision Maker (“ADM”).   Whilst it raises significant emotions for parents, the benefit to the placement proceedings running alongside the care proceedings is that the parents will benefit from legal aid and be represented at these hearings. The Working Group recommends that there should be a leaflet which explains the placement process and how it relates to adoption.  A Local Authority or the child has an inherent right to apply to revoke the placement application; parents may also make sure an application, but only with the permissions of the court. As previously noted, this will only be allowed where there has been a change in circumstances.  Should a substantive revocation application be pending, the Local Authority may not place the child for adoption without court approval. Revocation applications will often delay permanency for the child, particularly if they are made once family findings has been successful. That being said, the PLWG notes that this should not be changed, explaining:  “There are cases where it is entirely proper for the parents to be able to challenge the placement of their child. Unlike applications to oppose an adoption order these are usually not prompted by the court process itself and the issue of delay is a matter for the judge determining the application for leave.”  Adoption Applications  An adoption order will have the effect of severing legal ties between the child and their biological family, as such, there are various steps which must be taken before an application can be dealt with. These steps vary depending on whether the application is via an adoption agency or via a private application. All cases have a prerequisite placement time, whereby the child must have lived with the prospective adopter for X amount of time before they can apply, this varies as follows:  <ul class="wp-block-list"> <li>Agency Adoption: 10 weeks</li>  <li>Parent or partner of parent: 6 months</li>  <li>Foster Parent: 1 year</li>  <li>Any other person: 3 years</li> </ul>  Agency adoptions are such that the prospective adopters have been approved and matched by a panel prior to the child being placed with the proposed adopters.  Regulation 24 of the Adoption Agencies Regulations 2005, requires the Local Authority to provide appropriate preparation to prospective adopters. As noted in earlier chapters of the report, concern has been raised about the consistency and level of training provided to adopters. Concern was raised to the Working Group with respect to suitability and matching reports varying considerably across agencies.  In non-agency adoptions, whereby a ‘private’ individual applies to adopt a child, the applicant must give the Local Authority notice of at least 3 months that they intend to adopt the child. In Re A [2020] EWHC 3296, the Court held that non-compliance with the notice period did not result in an ineffective application.  As with placement applications, the Local Authority must prepare a report, the Annex A. This report has six sections as follows:  Section A: The Report and Matters for Proceedings – This should include the details of the author of the Annex A, including their qualifications and experience. Information should also be given as to whether there are others who should be made respondents to the proceedings.  Section B: Child and Birth Family – This section includes information about the child and each parent for the child. It also includes details of the important relationships to the child, contact arrangements, and the views of the child. There is also a summary of the actions of the adoption agency.  Section C: Prospective Adopter – This section provides detail about the prospective adopter, most notably their suitability to adopt the child. It should explore whether the prospective adopter will follow the wishes of the child, parents, and guardian in matters such as religious and cultural upbringing. Further, the section explores the prospective adopter’s reasons for the child.  Section D: The Placement – This section provides information regarding the placement and the timescales for support post adoption.  Section E – Recommendations  Section F: Further Information for Convention Adoption – This section only applies where the adoption relates to a Convention Adoption Order, s.84 Orders or s.83 adoptions. This section must comply with FPR PD14C.  It is important for a prospective adopter, in a non-agency case, to issue their application in a timely manner following notification to the LA. Failure to do so may result in the Annex A being out of date by the time of proceedings, risking delay in proceedings for an updated report to be completed.  Issuing the Application  The applicant must issue three copies of Form A58 along with the relevant forms. Directions will be made and a first hearing should be listed within 4 weeks. It is common for first hearings to be on the papers instead of an attended directions hearing.  There is confusion with the adoption forms, however, the Working Group is hopeful that the Reform Programme will aid in this aspect given that the applicant will be supported by prompts when completing the application online. The Working Group recommends condensing the existing consent forms into a single one.  Where possible, the Annex A should be lodged with the application to prevent delay; the PLWG notes that doing so may reduce the application time by half compared to cases where the Annex A is issued only following the first case management order.  Case Management  As noted, most initial hearings will be heard on the papers, with Judges providing directions without a hearing pursuant to FPR r.14.6(4). The Working Group recommends this practice should continue, with most hearings being suitable to be dealt with on the papers, reducing pressure on listing the hearing and avoiding delay.  FPR r14.8 notes the matters that the Court must consider when giving directions, this includes setting the timetable, requirements for any reports, party status for the child, directing tracing, and setting out directions for the final hearing. The initial case management orders vary across the country, and a standard order would be helpful  Final Hearings & Celebration Hearings  Where time to appeal any opposition to the adoption application has expired, the Working Group consider that there should be a block listing of final hearings to allow these to be made in bulk. A template order should be created for this.  A celebration visit is a hearing sometimes offered where the adoptive family attend the Court and formally ‘celebrate’ the granting of the adoption order. There are significant concern and risks with such visits. The adoptive family would be attending a family court with other parents engaged in care and adoption proceedings, possibly leading to upset for both families; it is possible even that the adoptive family could come into contact with the birth family.  The Working group noted also that:  “The point was also made that the word ‘celebration’ can be inflammatory from the viewpoint of the birth parents.”  Whilst these are legitimate concerns, the celebration hearing is an important steps in the adoption process. There was concern raised that some families had to travel considerable distances to courts across the country.  Other Areas of Concern  The PLWG noted several areas of concern that, whilst beyond the scope of the report, were of such importance that they felt it vital to flag them. These matters are such that they likely require changes to legislations to address:  <ul class="wp-block-list"> <li>Regulation 23 and 25 AAR 2005 deal with stage one and two checks. Stage one checks are enhanced police checks to assess suitability to adopt, once clear, stage two checks are completed. There is a significant delay in obtaining stage one checks, leaving Local Authority’s in a position where they must either delay the report or complete one without suitable checks.</li>  <li>A placement becomes an adoptive placement where the match is approved by the ADM; however, time that the child has lived with the applicant under an Early Permanence Placement (“EPP”) does count towards the time spent with the applicant. The Working Group note this should be reflected in update statutory guidance.</li>  <li>The current guidance implies EPP should be used before the making of a placement order. It is not clear whether EPP can be approved after a placement order or whether it can principally be agreed by the ADM prior to birth. Guidance should be updated to clarify these areas to assist Local Authority’s in adoption planning.</li>  <li>S.44(3) ACA 2002 provides that the prospective adopter must give at least 3 moths notice to the LA of their intent to adopt, the time limit for notification is capped at two-years. The Working Group note that two years is excessive.</li>  <li>S.42(3) ACA 2002 provides that a child must live with a step-parent for at least 6-months before they can apply to adopt the child. The Working Group note that this period is not sufficient and should be extended.</li> </ul>  Schedule of Recommendations  The Public Law Working Group makes numerous recommendations regarding the practice and procedure in adoption proceedings; these broadly follow the areas discussed above and can be broken down as set out below.  Leave to oppose adoption orders – Recommendations  The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Family and Domestic Abuse) (Miscellaneous Amendments) Order 2023 changed the legal aid position in relation to applications to oppose an adoption order. The Working Group recommends that there be a review in 12 months’ time to assess whether the greater availability in legal aid makes a difference to the number of applications made and/or refused.  During this 12 months, records of all applications should be kept and the final review should also allow representations from organisations as to the perspective of birth parents.  A nationally adopted leaflet about the adoption process should be created and provided to all parents on issuing the application. This should include information about the right to apply for leave to oppose and, importantly, the legal test to be applied.  Should a parent give notice they seek to oppose the order, Form FP2 should be sent to the parents, allowing them to formally seek to oppose in the proper form. The Working Group recommends it still be open to the judge to permit applications that still do not use FP2, but encouraging the proper form will aid in applications.  A template statement should be created allowing parents present evidence to support an application for leave to oppose. This template should follow the legal test, allowing parents to set out the changes in their circumstance and why their proposals are in the best interests of the child.  Applications to Oppose – Notification of Fathers and Wider Family – Recommendations  The Working Group note that, since the references to “inherent jurisdiction” and “High Court” have been removed from FPR r14.21, it is not considered necessary to make such applications for a declaration as to notification to the High Court or section 9 Judge. The Working Group does, however, recommend that these applications should be made to the Designated Family Judge who can ensure allocation to a suitably experienced Judge.  Notice of such an application should not be give to fathers without PR or family members until any issues regarding such notice are determined. Applications should be listed for an Urgent Case Management Hearing and matters such as further evidence or appointment of a guardian should be considered.  In relinquished baby cases where the mother does not wish for the father without PR or family to be notified, the Working Group endorses the approach taken by Jackson LJ in A, B and C (Adoption: Notification of Fathers and Relatives) [2020] EWCA Civ 41.  Rule 14.21 should be amended such that it includes reference to wider family members given the adoption agency, and court, must consider the relationship the child has with such relatives.  The English Adoption Statutory Guidance 2013 and draft 2014 version should be updated to reflect the current law and practice. It is noted the guidance was issued before the creation of regional adoption agencies and several significant cases.  Issuing the Placement Application – Recommendations  The PLWG advise that there be changes to advice and guidance in relation to placement applications. The Guidance Notes for completing the Form A50 should be revised to clarify confusion and a new leaflet should be created explaining the process of placement applications (especially where they are issued on a stand alone basis).  There should be a template statement of facts to provide uniformity. The statement should consistently include the nature of the current placement, decision of the ADM, and when parents were informed.  Instead of a separate form being completed to keep a child’s address confidential (Form A65), consideration should be given to amending Form A50 to include this as a section.  The Working Group notes the following as documents which should be lodged with an application for a placement order:  <ol style="list-style-type:lower-alpha" class="wp-block-list"> <li>Form A50</li>  <li>Form A65 where the Local Authority seeks to keep the child’s address confidential</li>  <li>Certified copy of the child’s birth certificate (originals are currently required)</li>  <li>Statement of facts complying with FPR 14.9 and the above recommendations</li>  <li>A copy of any Final Care Order</li>  <li>A copy of any Parental Responsibility Order</li>  <li>A copy of the ADM decision</li>  <li>The Annex B</li> </ol>  Case Management  It is recommended that, where applications are received on time, the Court should always acknowledge receipt. Short form standard orders should be encouraged and Case Management Orders should include timing for ADM decisions.  Where ADM decisions are delayed, the ADM should notify both the court and the parents as to the reasons, action being taken to address the delay and the next ADM date.  As above, a placement application leaflet should be created and served upon the parents alongside the application and supporting material. This leaflet should includes information about revocation of placement orders and an explanation as to the legal test.  Applications to Revoke a Placement Order  It was noted during the consultation that the wording of s.24(1) was, in some cases, leading to multiple applications for leave to revoke a placement order from multiple family members. The Working Group recommends that:  “…research be undertaken to establish whether this is a regional or more widespread issue, and to inform whether consideration needs to be given to any reform.”  Applications to revoke a placement Order should be made on the proper form, Form FP2, and this should be sent to applicants following issue. Failure to use this form would not bar an application.  The Local Authority should produce a template letter for parents and the court where the placement circumstances have changed, such as from a foster placement to a prospective adoptive placement. The Local Authority needs to be proactive in advising of such changes.  Annex A and B Reports  The preparation of the Annex B, Annex A, and Child Permanence Report are time consuming and involve repetition across reports. Where simple errors are made, these are likely to be replicated and liable to cause delay to proceedings. The Working Group suggests that reducing pressure on social workers by limiting information repetition could alleviate such errors.  The PLWG recommends that a unified report is created. There is already a combined report for the Annex B and CPR developed by CoramBAAF, but adding in the information from the Annex A would save further time. Streamlining reports must still ensure compliance with AAR and FPR PD14C.  Adoption (Pre-Issue)  The Working Group makes several recommendations in respect to pre-issue matters, aiming to ensure a smoother process and easier process for all parties involved, these recommendations are as follows:  <ul class="wp-block-list"> <li>The Annex A should be prepared before the application is issued so as to streamline the process. It is recognised this requires collaboration between the applicant and the Local Authority.</li>  <li>Applicants, when giving the Local Authority notice, should advised when they intend to apply to allow the Annex A to be prepared pre-issue.</li>  <li>Local Authorities should be proactive in communicating with birth parents post-placement and information should be provided to the court advising what steps have been taken to maintain contact, last contact, and last known address.</li>  <li>A national protocol governing transfer of information between Local Authorities and regional adoption agencies should be established.</li>  <li>S.19 and s.20 ACA 2002 cases (adoptions by consent) should be revised under a single form designed to address issues of statements and notification of parents.</li>  <li>To avoid delay in non-agency adoptions, applications should proceed with applications at an early stage after giving notice.</li>  <li>Where a non-agency application has been delayed, and the Annex A is thus outdated, the Social Worker shall provide a statement confirming any change of circumstances or lack of change.</li>  <li>There should be a national training and information protocol, specifically addressing the areas of documents, notably those placed before the ADM and Annex A, B and CPR reports. There should also be training on working with applicants.</li>  <li>A national protocol should be established with the police to ensure more efficient stage 1 checks.</li>  <li>There should be standard templates for suitability and matching reports.</li> </ul>  Issuing the Adoption Application  On issuing an application, it is suggested that the following documents are lodged:  <ul class="wp-block-list"> <li>A58 application</li>  <li>Birth certificate copy</li>  <li>Marriage/civil partnership certificate</li>  <li>Any Deed Poll</li>  <li>A copy of the Care and Placement Order</li>  <li>A copy of the placement application statement of facts</li>  <li>Any consents</li>  <li>Annex A report</li>  <li>Any request for DWP disclosure</li> </ul>  There should be templates for the initial case management order and final adoption orders to provide for continuity and efficient timetabling through to final hearing. In addition, clear guidance notes should be served on parents alongside the application.  Adoption Visits  There should continue to be the opportunity for adoptive parents to attend court for an adoption visit (also known as celebration visits). These visits are termed differently across regions and there should be continuity across the country, such visits should be referred to as “adoption visits”.  Whilst not all adoptive parents will want such a visit, they must be advised this is an option and the adoptive parents should confirm whether they want to attend such a visit. Courts should take necessary steps to ensure those attending these visits do not come into contact with parties engaged in care proceedings – each court should have a plan on how this will be achieved.  There should be a national protocol to allow a case to be transferred to a local court to allow adoptive parents to attend.  Other Areas of Concern  Parliament should consider whether the AAR 2005 should be amended to make clear that a Local Authority may proceed with stage 2 checks notwithstanding stage 1 checks being outstanding. Stage 2 checks should then be able to be terminated if stage 1 checks come back unsuitable without having to present to ADM or having appeal recourse (as is the case where only stage 1 checks are done and show unsuitability).  Parliament should consider whether to amend s.44(3) ACA 2002 such as to reduce the ceiling for the notice period from two-years to one-year. Any such notice should also be in writing and clearly dated to avoid issues with date of notice.  Parliament should consider whether to extend the ‘live with’ requirement under s.42(3) ACA 2002 to stepparents.  Postscript  In Somerset County Council v NHS Somerset CCG [2021] EWHC 3004 (Fam), several cases were raised where adoption medical reports had not been completed, in breach of the regulations. In order to avoid a repeat of these situations, the PLWG recommends that there should be some written memo (an email exchange sufficing) to confirm who the agency medical advisor is and this memo should be explicit in exhibiting that the medical advisor complies with the Schedule 1 requirements in the AAR 2005.  Several issues came out of the Cumbria Child Safeguarding Practice Review and the Child Safeguarding Practice Review Panel. From this, the Working Group recommends that:  <ol class="wp-block-list"> <li>The agency medical advisor’s summary report is required for Annex A’s.</li>  <li>Adopter’s health is subject to ongoing review in agency applications, as such the medical summary may be older than 3pmonths. Where there is no material change, this can be attached to the Annex A.</li>  <li>The prospective adopters’ social worker shall write to the applicants GP and referees before matching panel and application. There should be a standard template letter including a safeguarding statement, relevance of information, and seeking updating in the event of anything new coming to light.</li>  <li>There should be a consistent template for the medical advisors summary.</li>  <li>The child’s social worker and prospective adopters’ social worker should confirm they have reviewed the medical summary and addressed any concerns.</li>  <li>There should be a checklist of document required for ADM. This checklist, and the documents, should be placed before ADM when making the best interests decisions.</li>  <li>Local Authorities should ensure quality control mechanisms and team manager and agency adviser reviews of the checklist documents – these mechanisms should reflect the duty in para 1.32 of the 2013 Statutory Guidance on Adoption.</li>  <li>Local Authorities should ensure parents are notified of the proposed ADM decision date and a template letter should be created explaining the decision. Similarly, parents should be notified of the outcome.</li> </ol>  Conclusion  Chapter 3 of the Public Law Working Group’s report on best practice in adoption focuses on the practices and procedures surrounding adoption proceedings, highlighting the need for streamlined processes that better support children, birth families, and prospective adopters. The recommendations in this chapter emphasise the importance of reducing unnecessary delays, addressing procedural inconsistencies, and providing clarity to all parties involved.  Central to these reforms is the recognition that current practices often create confusion, distress, and inefficiencies, which ultimately fail to serve the best interests of the child. By advocating for national templates, updated statutory guidance, and clearer procedural frameworks, the recommendations aim to ensure consistency and fairness in adoption proceedings.  The PLWG also underscores the importance of keeping children’s welfare at the forefront, making clear that procedural improvements must align with their emotional, cultural, and identity needs. This includes revising outdated systems, ensuring proper training for professionals, and addressing gaps in areas such as the notification of wider family members and the preparation of Annex A and B reports.  Whilst several of the recommendations will require legislative change, adoption systems rooted in these recommendations are more likely to deliver timely, transparent, and child-centred outcomes. By addressing both short-term procedural issues and longer-term legislative reforms, these proposals aim to create a fairer, more efficient adoption framework. Ultimately, this will help ensure that children in adoption proceedings find stability and security in a process that respects their unique circumstances and needs.

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Justice Is Seen to be Done &#8211; High Court Considers Fairness of Counsel&#8217;s Interactions with Opposition

Harrogate &amp; District Law Society Family Finance Talk

Compassion vs Culpability: Morris v Morris &amp; Ors [2024] EWHC 2554 (Ch)

May Martin Successfully Defends Disability Discrimination Claim in the Employment Tribunal

13th March | Agricultural Conference, The Queens Hotel, Leeds

Practice and Procedure – PLWG Best Practice: A Guide

Latest News

Avaia Williams – Denying Pupil Barrister Entry

Leila Benyounes – £1.5 million Settlement in Delay in Diagnosis of Breast Cancer

Thompson’s Application for Judicial Review: Considering when a coroner becomes functus officio and when to reconsider anonymity orders

HQA v Newcastle-upon-Tyne Hospitals NHS Foundation Trust

Justice Is Seen to be Done – High Court Considers Fairness of Counsel’s Interactions with Opposition

Harrogate & District Law Society Family Finance Talk

Compassion vs Culpability: Morris v Morris & Ors [2024] EWHC 2554 (Ch)