Jon Comlay, Author at Parklane Plowden

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REPLAY: Personal Injury Case law update, 19 November 2024

<iframe width="560" height="315" src="https://www.youtube.com/embed/8dFhe5wqs5k" title="YouTube video player" frameborder="0" allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen=""></iframe>   Parklane Plowden's 'Law with Lunch' webinars bring you the latest law updates.  Barristers and personal injury specialists, Megan Crowther and Adam Chadwick, provide an update of all the key case law from the past six months.  Click the video to watch the webinar recording.

Post Adoption Contact – PLWG Best Practice: A Guide

In this first article in a series covering the Public Law Working Group’s recommendations for best practice for adoption, I delve into Chapter 1 of the PLWG report, which addresses a pivotal topic for professionals and families involved in adoption proceedings: post-adoption contact. Recognising the evolving needs of adopted children, birth families, and adoptive families, this chapter emphasises a more dynamic and child-cantered approach to contact that could bring significant changes to both the pre-adoption and post-adoption landscape.  This article will follow the general chronology and sub-headings of the report to ensure consistency, but hopefully will break this down into a more bite size and user-friendly guide to what the PLWG have suggested and, importantly, how this might impact cases going forward for all court users.  Background  Historically, children were placed for adoption with no expectation, or even framework, for contact after they had been adopted – this was believed to be protective at the time. By the time of the Adoption Act 1976, research began to show that such adoption arrangements could lead to serious disadvantages around their sense of identity, though the 1976 Act remained void of any provision to promote such contact.  The landscape for care proceedings took the first step towards promoting contact; section 34 of the Children Act 1989 provides:  “Where a child is in the care of a local authority, the authority shall (subject to the provisions of this section) […] allow the child reasonable contact with— (a) his parents…”  Whilst not applying to the adoption landscape, it was clear that contact with a birth family was considered, at least broadly, in the best interests of the child. The Adoption and Children Act 2002 brought the adoption system closer in line with the care system, providing that a court must consider the issue of contact before it could make an adoption Order (Adoption and Children Act, s.46(6)), but this did not extend a duty to promote this contact.  The House of Lords Select Committee on Adoption Legislation reported the following in 2013, at paragraphs 255 and 256:  “Many families participate in ‘letter-box contact’, once or twice a year, which involves exchanging information between the adoptive family and the birth parents. This contact is usually facilitated by the adoption agency to protect the identity and location of the adoptive family. Direct contact with birth parents is rare; it occurs more often with siblings.”  “The evidence we received did not suggest that change was required to the legislative framework.”  In more recent years (at least in the legal sense), The Children and Families Act 2014 amended the 2002 Act, inserting Section 51A which was the first concrete legislative enactment that looked at post-adoption contact, noting:  “(2) When making the adoption order or at any time afterwards, the court may make an order under this section— (a) requiring the person in whose favour the adoption order is or has been made to allow the child to visit or stay with the person named in the order under this section, or for the person named in that order and the child otherwise to have contact with each other, or (b) prohibiting the person named in the order under this section from having contact with the child. (3) The following people may be named in an order under this section— (a) any person who (but for the child's adoption) would be related to the child by blood (including half-blood), marriage or civil partnership;  […]  (4) An application for an order under this section may be made by— (a) a person who has applied for the adoption order or in whose favour the adoption order is or has been made, (b) the child, or (c) any person who has obtained the court's leave to make the application. (5) In deciding whether to grant leave under subsection (4)(c), the court must consider (a) any risk there might be of the proposed application disrupting the child's life to such an extent that he or she would be harmed by it (within the meaning of the 1989 Act), (b) the applicant's connection with the child, an (c) any representations made to the court by— (i) the child, or (ii) a person who has applied for the adoption order or in whose favour the adoption order is or has been made.”  However, as the report notes:  “…there is little reported case-law to suggest that these provisions are being actively used (see appendix A: table of post-adoption case-law, prepared by Sharon Segal) and anecdotal experience suggests that these provisions are rarely employed. Furthermore, indirect and letterbox contact remains the predominant contact provision post adoption in England and Wales.”  It is only in the past few years that post adoption contact has been taken seriously. In 2022, the House of Lords Children and Families Act 2014 Committee reported: “The failure to modernise contact threatens to undermine the adoption system.” Sir Andrew McFarlane, the President of the Family Division, in a series of lectures, has further highlighted the need for greater understanding of the benefits of post adoption contact; speaking on Re B (A Child) (Post Adoption Contact) [2019] EWCA Civ 29, the President noted that ‘the imposition on prospective adopters of orders for contact with which they were not in agreement is extremely, and remains, unusual.’ Essentially opining that greater flexibility in post-adoption contact must be on a case-by-case basis.  In a more recent lecture (the POTATO Conference lecture), the President reflected upon research into the attitudes of those who have been adopted, the report notes that:  “The message from those lectures was that the court and the Family Judiciary have an important part to play in the cultural shift towards greater openess for adopted people and their families. Orders for contact made at the time of the placement order under s26 ACA 2002 can set the template for contact going forward, and this will be an Important 'known known' about the child to be taken on board by any potential adopters with whom placement may be considered.”  Research  The research of Elsbeth Neil and Julie Selwyn played an invaluable backdrop to the reports research. The PLWG noted that understanding the approach in Northern Ireland, where post-adoption contact plans are usually prepared with provisions for direct contact.  The Working Group reported that there were several research issues influential to the thinking of the report:  <ol class="wp-block-list"> <li>Transparency and openness around the circumstances of the adoptee’s birth family is beneficial to the child.</li>  <li>The purpose of post-adoption contact is to support the child to understand their experience and develop their sense of identity.</li>  <li>Separating siblings can lead to an enduring sense of loss.</li>  <li> Face-to-face contact helps children develop their identity and to accept the reasons behind their adoption.</li>  <li>Ensuring contact is safe is vital for any positive outcomes.</li>  <li>Communication with and understanding from the parties involved in contact is important to its success.</li>  <li>Despite research indicating the benefits, the overwhelming majority of cases remain letterbox only. Where direct contact does occur, this is often without formal agreement.</li>  <li>A high degree of letterbox contact arrangements stall due to the failure of one or both parties to maintain the arrangement, leaving many children without effective contact.</li>  <li>The Northern Ireland experience suggests a shift in the mindset of adoption professionals and guidance from the judiciary can bring about a change in post-adoption contact without the need for primary legislation.</li> </ol>  Given the value of the research in this area, the Working Group considered how widely available this was for those working in the field, noting that this requires private study that is not always possible.  “Disseminating the results of the extensive research in this area seemed to us an important first step, so that all approach the concept of post adoption with a clear and realistic outlook.”  The positions of those involved in adoption need to be understood and addressed:  “…birth parents may find it hard to engage in conversations around post-adoption contact at a time when they may be contesting proceedings and seeking the return of their child. Support counselling and guidance for them needs to be carefully thought out and should be available not just before and during proceedings but after the decision is made, and once they have had time to process their situation.”  “In the same way, the views of adopters around post-adoption contact may change over time. Contact plans are almost always voluntary and a good understanding of why such contact is necessary better enables them to commit to the plan. An adopter’s commitment to post-adoption contact may be very high immediately after training but may fluctuate for any number of reasons. Access to training and education for them should be available at all stages of the process including after the order is made.”  The PLWG endorses the comments made in the House of Lords Committee report, noting that there is a need for a meaningful but safe system allowing for support for lifelong contact with members of the birth families, where this is safe. It is clear that, alongside this, social workers, children’s guardians, and judges need to change their thinking about post-adoption contact. A key point emphasised by the report is that any change in approach must be coordinated will all parties working on the same page as “[A]nything less is unlikely to bring about the wholesale change in the manner in which post adoption contact is managed.”  Finally, the Working Group considered digital innovations being piloted in post-adoption contact, namely ‘Letterswap’ and ‘ARCBOX’ which are platforms being utilise to support electronic exchange between adoptive and birth families.  General Recommendations  The PLWG makes six broad general recommendations to post-adoption contact.  Change the approach to face-to-face contact – Greater consideration needs to be given as to whether there should be face-to-face contact between the child and their birth family. Whilst this won’t be safe in all cases, it is outdated for this to be the extremely rare exception.  Consistent training for prospective adopters – Regardless of who delivers training, there needs to be a consistent message that places lifelong needs of adopted children at its core, notably in relation to their sense of identity and the importance of communication and birth family contact in order to meet those needs. Training should include the available research and voices of those impacted by adoption.  Ongoing training for adoption practitioners – Social workers, lawyers and judges should undergo regular training which is underscored by the research outcomes of post-adoption contact. This training should also include the voices of those impacted by adoption.  Signpost birth parents to independent support ASAP – Birth parents should be provided guidance, counselling and support. The requirement under ss. 3-4 ACA 2002 for support should be promoted. Birth parents should be encouraged to use a support worker and Adoption agencies should be responsible for signposting parents to support. Cafcass or the court should ensure this service is being offered and the care plan should prompt the social worker to ensure that it has been done.  Ongoing support for birth parents – Regional adoption agencies should offer or commission ongoing support. There should be a strong awareness among the agencies staff, and a clear presence on their website and printed materials, of how to access this support. Should these services not be taken up, independent advice and information services may be a way to enable reconsideration. Should these services still not have been taken up one year after the Orders are made, adoption agencies should again approach birth parents.  Establish best practice guidance – Similar to the Welsh system, there should be a best practice guidance dealing with the approach of practitioners to post-adoption contact and encompassing the recommendations of the report.  The Working Group’s general recommendations advocate for a structured, supportive, and importantly a research-informed framework to post-adoption contact. By standardising training, enhancing support for birth families, and guiding practitioners via a consistent best practice approach, a clear and child-centred approach to adoption will evolve that prioritises the identity of adopted children.  Recommendations Pre-Proceedings  In addition to the general recommendations with respect to post-adoption contact, the PLWG has identified areas for improvement at the pre-proceedings stage.  Early identification of important relationships – The approach to identifying alternative carers should be expanded to consider the relationships which are or may be important to the child. This early understanding of the child’s network will provide a map of those who might be considered for direct post-adoption contact. Consideration will need to be given to those who are not immediate family, especially for very young children whose future network is not clear.  Creation of an important relationships map alongside Genograms – This map of relationships will include those who are already significant, but also those who can provide news about such significant individuals, can provide reassurance to the child, and can facilitate positive contact. Non-familial relationships should also be considered such as godparents and previous foster carers.  Establish guidance as to the roles of social workers – Early liaison between child protection social workers and adoption social workers at the point adoption is within contemplation would be helpful. Early involvement ensures the adoption social worker has a clear understanding of the child’s networks. This also ensures that an adoption professional is involved to ensure specialist knowledge on contact and working with birth families is available to carefully consider any plan should an Order be made. This early liaison should not be any indication that a Court has made any decision on adoption.  For pre-proceedings, the PLWG’s emphasis on mapping relationships and supporting collaboration between social work professionals will ensure that those relationships important to the child and preserved. The early identification of these relationships provides a solid foundation for meaningful contact arrangements that will ensure the child’s longer-term emotional needs are met.  Recommendations During Proceedings  Further, the report recommends that the full range of contact options should be actively considered by both professionals and the court during proceedings; the assumption that contact will automatically be letterbox should be removed. The Working Group recognises that this will impact differently on the various professionals involved.  For social workers, this will require an investigation of those who may positively contribute to post-adoption contact, the report cites:  “The personal circumstances, wishes, and resources of birth family (and foster family) members need to be explored. Attention should be paid to considering who in the child’s existing network has something to offer in terms of providing background information or ongoing news of how significant people are doing. Who can reassure the child that they are cared about and remembered? Which individuals are most able to support the child as a member of their adoptive family? What help might birth parents need to manage adoption-related loss, anger, and shame so they can focus on their child’s needs.”  This will also require social workers to:  <ul class="wp-block-list"> <li>Assess the ability of those identified to maintain post-adoption contact within the final care plan.</li>  <li>Specifically address within the Final SWET the balance between the welfare interests of the child and the safeguarding issues with respect to post-adoption contact. This should specifically evidence a range of options and individuals have been considered, with reasoning why they are or are not suitable.</li>  <li>Specifically address within the Final SWET whether reconsideration of direct post-adoption contact should take place at a later stage.</li>  <li>Consideration must be given within any recommendation as to the practical arrangements (with face-to-face contact, this will include duration, frequency, and location). The Working Group notes the research heavily indicates the adoptive parents should be involved in such contact in most cases. The report specifically notes that an acceptance by the birth family that adoption was the right decision is not always necessary to ensure post-adoption contact is positive, but the birth family will need to understand their role has change. At the later stages, this could be via a form of working together agreement.</li>  <li>Where letterbox contact remains the recommendation, digital options should be explored. By the time the adoption order is considered, there should be a clear plan in mind that has been approved by all parties involved, including the prospective adopters.</li>  <li>Post-adoption contact should be emphasised in the final care plan, including identifying support that may be necessary to the child, adopters and birth family.</li>  <li>Specific consideration should be given to sibling contact, with targeted work undertaken. This must be done within proceedings to ensure no gap in contact.</li>  <li>A draft contact support plan should be available for the Court to consider prior to the making of a Placement Order. A full version should form part of the adoption support plan.</li>  <li>Social workers should agree who completes the life story, this should be clear by the time a Placement Order is made.</li> </ul>  For children’s guardians, this will require that they address, within the final analysis, whether post-adoption contact has been considered broad enough. This should also include their own analysis on the welfare benefits of any contact recommendations. The report recommends the standard template is amended to include a section looking at these specific issues.  The IRO may have a further compliance role at the stage of the adoption order given, in most cases, the children’s guardian will no longer be involved at this stage.  For the courts, this will require specific consideration on the use of s.26 ACA 2002 and how it can be used to set out the contact needs of the child such that they extend beyond the point of the placement order. This would especially be so where the ending of contact after placement order would be detrimental to the child. Putting these orders in place will set the tone for what should happen after the adoption and once the life of the s.26 order comes to an end, the report cites:  “Such orders may influence the search for adopters and focus the minds of professionals, prospective adopters and birth relatives on establishing a working contact plan. This may be a useful tool where children are considered to have a compelling need for ongoing contact, helping to avoid these needs being side-lined in order to make him or her more ‘adoptable’, an outcome that is incompatible with the notion of adoption as a service for children.”  The courts will also need to consider, where applicable, the use of s.51A ACA 2002, which contemplates the making of a contact order at that moment or any time post-adoption. This provision could be used to facilitate a review of contact by the court, as the President said in the NAGALRO lecture ‘In the right case, there may well be justification in this power being used for the issue of contact to be set down for review, may be in a year or more after adoption to see if, in some way, provision of contact may provide the adopted person, the soon to be adult, with some bridge back  to her roots.’ The Working Group does however recognise imposing an order on unwilling adopters is serious, and that case law has set out the limits where this is appropriate (Re B (A Child) (Post-Adoption Contact) [2019] EWCA Civ 29). This highlights the need for the adopters to be fully involved in decisions about contact, however, the PLWG notes that:  “If the other recommendations in this report are accepted, we hope that with greater support and training for all concerned, decisions about contact are overwhelmingly likely to be made by consent.”  The report calls for a clear and stark shift away from letterbox only contact and towards consideration of a broader range of options. By integrating the approach by those professionals involved and fostering consideration for post-adoption contact at all stages, the child’s unique welfare needs will be considered throughout the process.  Additional Recommendations  Finally, the report sets out 14 miscellaneous, additional, overriding and other recommendations aimed at supporting post-adoption contact:  <ul class="wp-block-list"> <li>Adoptive parents should write a ‘settling-in letter’ to the birth family.</li>  <li>A meeting between the adoptive and birth family should be considered in every case.</li>  <li>‘Later in life’ letters from the birth family should be considered and timetabled.</li>  <li>Whilst Regulations require life story books to be available 10 days after an adoption order, these should be available by the time of the order and should include those people identified as important to the child.</li>  <li>Examples of post-adoption agreements and contact plans should be circulated nationally and be available to all adoption agencies as a flexible pro forma.</li>  <li>Communication between the birth parents and adoption social worker should continue to allow reassessment of post-adoption contact, noting that “the capacity of adults to consider and enact contact plans may be much higher once the ‘the dust has settled’. An expectation of the need for flexibility and to keep arrangements under review should be established from the start.” Ongoing support should be provided to ensure these arrangements remain in place and a contact support plan being available at the placement order stage would benefit in this area.</li>  <li>Documents shared with adopters about the birth family must be balanced. The adoptive family needs to know the positives as well as the negatives.</li>  <li>The adoption social worker should offer periodic reviews of the contact plan. These would not be formal or compulsory, but flexible ‘check ins’ should take place to ensure the child’s needs are met.</li>  <li>Digital platforms should be considered to enable indirect contact.</li>  <li>Direct contact should be expected to continue in Early Permanence Placements (EPP) where this has gone well.</li>  <li>Social workers should manage and support direct contact, including preparation and de-briefing. The social workers will need to be attuned to a trauma sensitive practice in this area.</li>  <li>Adoptive and birth families should have a named worker to approach regarding letter box contact.</li>  <li>Judgments where contact is a feature should be published in full.</li>  <li>All siblings not placed together should receive the information in the ‘Charter for Siblings’</li> </ul>  These additional recommendations go to the importance of the need for flexibility to facilitate post-adoption contact. Even where letterbox contact is still the recommended course, having a clear path in mind for this and the reviews that will take place, are liable to ensure that birth families are able to effectively communicate and children retain the best chance of developing their identity safely.  Conclusion  Chapter 1 of the Public Law Working Group’s report on best practice in adoption centres on the need for post-adoption contact and how this can be better facilitated. The recommendations shift the perspective from contact being the extremely rare exception, to being the standard consideration in most cases. The proposed reforms to best practice encourage all involved to focus on the identity and emotional needs of the children involved by making sure contact arrangements are flexible and responsive to each unique child and their unique needs.  Consistent training, regulation, and best practice guidance for adoption professionals will ensure that all those working in this field are working with the same research driven goals in mind, with understanding of the long-term benefits being at the core of all decisions. But this will also go to quickly shifting the perspectives across the board.  The current approach to adoption is still one rooted in archaic and outdated perspectives, with birth families being written off as to any positive impact for the child, but the research shows us that this is not right. That it is in the best interests of the children to maintain strong and identifiable roots to their birth family.  Adoption systems that are structured around these recommendations are likely to foster more positive and supportive outcomes for children, where the preservation of meaningful relationships is prioritised. As an end goal, these recommendations could lead to a system that secures the child’s future by respecting their history, sense of identity, and their longer-term life needs.

Sharon Robson

It is with great sadness that Parklane Plowden Chambers share the news that our former Senior Practice Director and great friend Sharon Robson died at home on Sunday morning, surrounded by her beloved family.  Sharon was an inspirational woman and outstanding barristers’ clerk, who championed and supported members of chambers and staff alike. She was a key member of our senior clerking team, playing a crucial role in the careers of many current and former members, several of whom went on to judicial appointments, with her characteristic calmness, efficiency, and kindness. She was just as important in the mentoring and professional development of junior members of the clerking team, with a talent for spotting and nurturing those with potential. She was highly regarded by clients: earlier this year, she was described in a legal directory as “one of the best clerks I have dealt with in my career”.  Perhaps most importantly, she was our friend.  Sharon retired from Chambers just one month ago, after the treatment that she had been undergoing for cancer came to an end. She dealt with her illness with immense bravery and fortitude. We will miss her greatly. Our thoughts are with her husband Glen, children Holly and Cameron, and mam Gerry. Further details of Sharon’s trail-blazing career can be found: <a href="https://www.parklaneplowden.co.uk/sharon-robson/" target="_blank" rel="noreferrer noopener">here</a>.

Lydia Reed – My First Month of Civil Law Pupillage at Parklane Plowden Chambers

I have had a fascinating first month of my pupillage under the supervision of Hylton Armstrong. I have had the opportunity to observe quite a wide range of personal injury and clinical negligence work. My time has generally been spent conducting legal research, observing conferences, drafting paperwork, attending court, and going to a various events.  Examples include attending an application to amend a defence to plead fundamental dishonesty with Corin Furness, observing a three-day long public liability trial in Manchester with James Murphy, going to Hudgell Solicitor’s Clinical Negligence Conference on women’s health in York, listening to a Leeds Medico-Legal Society talk by Anna Datta on expert evidence, and being a part of my first North-Eastern Circuit’s Grand Court dinner.  Over the last month I have learned how barristers approach situations differently in terms of their oral submissions and written styles, and how they manage time effectively. I have also seen how barristers are able to reframe arguments and explain complex legal analysis in clear language.  The highlight of my month was probably attending an approval hearing before Mrs Justice Foster at the Royal Courts of Justice in London with Howard Elgot and Abigail Telford. They acted on behalf the Claimant in the case of HTR v Nottingham University Hospitals NHS Trust which eventually settled for over £20m in damages shortly before the quantum trial. I was able to see the relationship between Leading and Junior Counsel and how these roles differ. I also witnessed the real-life impact of long-running litigation on families who are affected by serious instances of clinical negligence.  More recently I even got to attend Wakefield Coroners’ Court for my first noting brief. Noting briefs are the only types of cases first six pupils can accept instructions on, and it meant that I was able to witness the inquest up close and get a glimpse of what to expect in second six and beyond.  Overall, I have thoroughly enjoyed my first month of pupillage, and have especially enjoyed meeting lots of members, all the staff, my co-pupils, and all the other pupils on circuit.

The Tractor Tax

Inheritance Tax (“IHT”) is levied on the value of the estate of the deceased or on a gift made by the deceased less than 7 years before death, that is to say a potentially exempt transfer (“a PET”). Transfers to a spouse or civil partner are exempt. After the deduction of the applicable nil-rate band, the IHT which is payable depends on the nature of the assets in the estate or given during the lifetime.  At present, nearly all of the assets used in a working farm will attract either agricultural property relief (“APR”) or business property relief (“BPR”) at 100 per cent. Agricultural land attracts APR limited to the “agricultural value” of the same, while farm equipment, machinery and livestock attracts BPR. The reliefs are mutually exclusive, but the test is broadly the same. Agricultural land will attract APR at 100 per cent if it was occupied by the owner or his or her civil partner for two years before the death or transfer or occupied by someone else for 7 years. Farm business assets attract BPR if such assets were in use not more than two years before the transfer. APR relates to the land. An investor who owns agricultural land can claim APR, but only if the land is farmed.  100 per cent APR and BPR was introduced by the John Major Government in 1992 to ensure that the death of a farmer would not lead to the enforced sale of the farm to pay IHT. This is the regime which everyone has become used to.  As a general rule, farmers die rather than retire. Capital gains tax (“CGT”) and IHT are not payable in relation to the same event. Where the interest in a farm passes on death, the beneficiaries of the estate are treated as having received such interest at the current probate value. This sets their base cost for CGT. They only pay CGT on any future sale to the extent that the price paid exceeds the probate value. As APR and BPR are at 100 per cent, there is every incentive to provide an up-to-date valuation of all farming assets to HMRC with the IHT400 form and this is what is usually done.   The applicability of APR or BPR at 100 per cent on all or the vast majority of farm assets has meant that most farmers have never needed to take tax planning advice unless they have diversified into other businesses, the land has development potential or there is a particularly valuable farmhouse. Normally, significant changes to IHT are brought in over extensive time with prior consultation. There was no consultation here. Indeed, it is reported widely that DEFRA was not informed about the changes until the evening before the Budget.      From April 2026 100 per cent APR and BPR on any transfer by death or lifetime transfer will only apply to the first £1million of assets. Thereafter, APR and BPR will be at 50 per cent. IHT is payable at a rate of 40 per cent.  It is important to set out specifically what was said in the budget (taken from the official transcript)  <blockquote class="wp-block-quote"> “From 2026, the first £1m of combined business and agricultural assets will continue to attract no inheritance tax at all …. …. but for assets over £1m, inheritance tax will apply with 50% relief, at an effective rate of 20% This will ensure we continue to protect small family farms … …. and three-quarters of claims will be unaffected by these changes.” </blockquote>   The dots do not represent omitted passages. They record the manner in which the budget speech was delivered.  At first sight, the £1 million figure seems to relate to the whole assets of the farm and not to the interest of an individual spouse or civil partner in the same. There is no reference to partnership in the Budget speech and so it is unclear whether the £1 million figure applies to the capital account of the deceased partner. However, a partner does not have any interest in specie in partnership property, so the figure ought to apply to the capital account (see Popat v Shonchhatra [1997] 1 WLR 1367).  Although this change does not apply solely or even mainly to tractors, it has been referred to imaginatively as “the tractor tax”. In reality, it applies primarily to land. Farm equipment and machinery are depreciating assets. Land is not. The Good Lord is not making any more of it. The value of agricultural land has increased significantly since 1992. Whether this is due to 100 per cent APR is unclear. The value of residential land has also increased over this period. Some of the increase can also be traced to the replacement of agricultural holdings with farm business tenancies. Tenants of an agricultural holding enjoy security of tenure, succession rights and rent protection. Farm business tenancies have none of these rights.   This article is aimed at farmers who own their own farms. Recent reports indicate that institutional landowners are terminating farm business tenancies at an alarming rate in anticipation of the new regime. Farm business tenancies have no real security of tenure. This seems to be an example of the law of unanticipated consequences.  The Chancellor of the Exchequer has stated that the “effective” threshold for IHT on farms could be as high as £3 million. It is difficult to see how this figure has been calculated. The single transferable nil-rate band still applies. Where one spouse or civil partner dies and does not use up their nil rate band for IHT, the balance can be used by the second spouse or civil partner to die. The single transferable nil rate band is now £650,000 (with a higher figure for a dwelling-house), so the “effective” threshold could be said to be £1.65 million. However, the nil rate band of the first to die can only be used by the second if the marriage or civil partnership was ended by death. Insofar as the Government has considered this in assessing the burden on farmers, it fails to take into account the record rate of divorce in the farming community. The individual nil rate band is only £325,000 and there are many “small family farms” with assets of over £1.325million.  As far as it is possible to tell, the Government has not made any sensible estimate of the yield from this alteration to IHT. In reality, it is impossible to do so. The effect of partnership options (as described below) has not been taken into account. We are moving from a regime where farmers have generally not taken tax planning advice to one in which they will be foolish not to do so. The effect of simple and non-aggressive tax planning will probably reduce any anticipated yield significantly. The value of agricultural land may decrease significantly at least in the short term, but the effect on individual regions is difficult to estimate. In reality, IHT will fall on farmers who have not planned ahead due to the speed of the changes or who are just unlucky.  Aside from making full use of the spousal exemption and any transferable nil-rate band, the most obvious form of tax planning which could be used is merely for the farmer to give an interest in the farm or its land to his children during his lifetime and hope to survive for seven years. However, it is not as simple as this. If such a gift is made and the farmer continues to use the land as before, the gift with reservation of benefit rules (“the GWR rules”) will apply.   As regards farms, the effect of the GWR rules is largely untested due to the applicability of APR at 100 per cent. HMRC has no interest in taking points which do not lead to additional IHT being payable. Realistically, where a farmer gives land to a child and then continues to use that land in his own business, the GWR rules will apply unless there is a tenancy agreement providing for rent at a market rate. The rent would have to be paid or the arrangement might be viewed as being a sham. The farm might not be able to sustain such a payment.   What farmers must not do is make unadvised sales during their lifetime to avoid the proposed changes to IHT which will generate a CGT charge.  To date, partnership has not generally been viewed as part of farming tax planning due to the availability of 100 per cent APR or BPR. However, partnership does enable value to be transferred between generations in a manner which other forms of business association do not.  In this regard, there are two situations to consider. The first is pre-existing partnerships. The second is partnerships to be formed in response to the changes.  Pre-existing partnerships  Partnerships property is held under the trust created by section 20(1) of the Partnership Act 1890. Section 20(1) removes the need for a document of transfer for land or any other asset entering a partnership (but not leaving it). The interest of a partner is manifest in his or her capital account as there is no interest in specie.  Where a partner transfers property into the partnership, he is credited with its current value as an addition to his capital account. Partnerships are not required to revalue assets. A farming partnership might have land included as partnership property which was brought into the partnership decades ago. The capital profit (that is to say the profit generated on sale) is divided in profit shares unless the contrary is agreed.  Not all farming partnerships have a written partnership agreement or deed. Where they do, then there will usually be a clause giving the surviving partners the option of purchasing the interest of a deceased partner. This will either be at historic book value or subject to revaluation. In determining which applies, the Court uses normal principles of contractual construction and there is no presumption either way (see Drake v Harvey [2011] EWCA Civ 838). Up until the end of the last century at least, the former was the norm as revaluation takes time and costs money in surveyor’s fees. The effect of this is that the interest of the deceased could be purchased at a very low historic cost. Presumably, it would be this cost which is used to calculate IHT.  Even where there is a partnership agreement, there may be real difficulties in identifying what is partnership property and (thereby) subject to an option. Even though no transfer document is required, land and any other assets can only be transferred into a partnership by express agreement. The Court does not treat the partnership accounts as helpful in establishing such an express agreement as many accountants include all assets used by a partnership as partnership property even if there is no agreement to do so (see Wild v Wild [2018] EWHC 2197 (Ch)).  I have had many claims where the estate of the deceased has fought against such a book value option. This is on the basis that land is held outside the partnership, on the basis that the partnership agreement is not binding (because more recent partners have not been made parties to the same or accepted its terms) or on the basis that the option (when properly construed) enables revaluation. Presumably, the effect of the changes will be that such arguments will no longer be pursued. The estate will just fall on its sword or deals will be negotiated between the estate and the continuing partners at the threshold for IHT.  Could the partners in a pre-existing partnership enter into an agreement including such a book value option? A disposition is only a gift if this is intended (see section 10 of the Inheritance Tax Act 1984). It is not a gift if “it was such as might be expected to be made in a transaction at arm’s length between persons not connected with each other”, that is to say a normal commercial transaction. It would be difficult for HMRC to argue that such a partnership agreement operated as a gift given that this type of agreement was the norm and is still used. In any event, such an option is against the interests of the first to die, but this might not necessarily be the parent.  New partnerships  Where a farmer admits a child as a partner, the agreement will not create a PET unless the initial capital account of the child is credited with part of the value of the property transferred into the partnership. If the farmer is credited with the full value of the property transferred by him into the partnership as his initial capital account, then there is no gift. The partnership agreement can give the child a significant share of the profits of the business moving forward. As capital profits follow income profits, the child will receive a share in the increase in the value of the partnership property from the time of his or her admission. In addition, if the farmer has drawings which exceed his share of profits, this will over time reduce his capital account naturally. As a partner has no interest in individual assets, the only interest which can be transferred on death is this capital account. Accordingly, this natural reduction will reduce the IHT. The partnership share of the child can be increased each year without varying the partnership agreement.  The requirement that property should be brought into the partnership at full value means that this type of arrangement is only valuable for tax planning looking at future growth.  This type of arrangement also works in principle for LLPs. However, LLPs are not usually used to hold assets. The arrangement does not work with companies because shares which have a right to participate in profits have a value and will be classed as a gift.

“Grave Risk” Defence and Educational Needs Scrutinised in Hague Child Return Case

SD v MM [2024] EWHC 2593 (Fam)  Avaia Williams, a first-six pupil under the supervision of Sara Anning and Rebecca Musgrove, offers an insightful summary for Family Law Week on SD v MM [2024] EWHC 2593 (Fam), a recent High Court case interpreting Article 13(b) of the 1980 Hague Convention.  The judgment addresses the stringent threshold for the "grave risk" defence, as the mother argued that returning her child with Asperger’s Syndrome to Romania would expose him to psychological harm due to insufficient specialist educational support. However, the High Court found no substantial evidence of "grave" harm, emphasising that protective measures in Romania could mitigate the mother’s concerns.  This case reinforces the Convention’s principle of swift returns to the habitual residence and underscores the limited application of Article 13(b) in child abduction cases.  The full summary is available on <a href="https://www.familylawweek.co.uk/judgments/sd-v-mm-2024-ewhc-2593-fam/" target="_blank" rel="noreferrer noopener">Family Law Week</a>.  The full Judgment can be found <a href="https://www.bailii.org/ew/cases/EWHC/Fam/2024/2593.html" target="_blank" rel="noreferrer noopener">here</a>.

When does fresh evidence require a further inquest under s.13 of the Senior Coroners Act 1988?

HM Senior Coroner for Cornwall and the Scilly Isles v Elaine Rowe, Helen Price, Royal Cornwall Hospitals NHS Trust [2024] EWHC 2673 (Admin)  Facts  Before Lord Justice Holroyde and Mrs Justice McGowan, HM Senior Coroner for Cornwall and the Scilly Isles applied for orders quashing the two inquests into the death of Edward John Masters and Mary Helen Rooker, held in 2017 and 2013 respectively. The application was made pursuant to Section 13(1)(b) of the Senior Coroners Act 1988 on the ground that new facts and evidence made it necessary and desirable for a fresh investigation into the deaths. All of the interested parties were aware of, and supported, the applications.  Mr Masters underwent elective surgery in 2017 to repair an abdominal aortic aneurysm. After initial recovery from surgery, his condition deteriorated and he suffered internal bleeding leading to cardiac arrest. He sadly died later that evening. The original inquest into Mr Masters death concluded that he had died from a known complication of the elective surgical procedure.  Mrs Rooker also underwent surgery for the repair of an abdominal aortic aneurysm in 2012. Post-operatively, she suffered internal bleeding. A laparotomy could not identify an obvious cause of the bleeding, and she underwent a further procedure when a scan revealed a perforation of the bowel. Her condition continued to decline over the following days and she sadly died 12 days after the initial surgery. The original inquest concluded that Mrs Rooker’s death was partly caused by peritonitis, a recognised complication of the surgery.  Fresh Evidence  In January 2019, Royal Cornwall Hospitals NHS Trust requested the Royal College of Surgeons to undertake a review of their vascular surgery unit, including the work of the surgeon who had operated on Mr Masters’ and Mrs Rooker. Serious patient safety issues in relation to the patients of that surgeon were identified by those conducting the review.  The fresh evidence identified shortcomings in the consent process and in the care and treatment of Mr Masters during his operation.  An expert report, not available at the time of the original inquest, by Professor Bradbury (a Professor of Vascular Surgery and Consultant Vascular and Endovascular surgeon), pointed towards negligence in relation to Mrs Rooker’s surgery on three parts: (i) proceeding to operate despite low platelet count; (ii) lack of informed consent; and (iii) unacceptable standards of treatment.  In both cases, the evidence raised the possibility that their deaths were contributed to by acts/omissions on the part of the surgeon and by a collective failure of care and systems at the hospital.  Legal test  In these circumstances, the Court was required to consider the single question as to whether the interests of justice made a further inquest either necessary or desirable.  In doing so, they applied the Hillsborough case (HM Attorney General v HM Coroner of South Yorkshire (West) [2012] EWHC 3783) where the  Lord Judge CJ had stated “…it seems to us elementary that the emergence of fresh evidence which may reasonably lead to the conclusion that the substantial truth about how an individual met his death was not revealed at the first inquest, will normally make it both desirable and necessary in the interests of justice for a fresh inquest to be ordered.”  Findings  The Court was satisfied, on the fresh evidence before it, that it was necessary and desirable in the interests of justice for another inquest to be directed in both cases. The determination and findings of the original inquests were quashed. The Court noted it was not necessary for the Coroner to prove that a fresh investigation would probably lead to a different outcome, but on the evidence before them in each case, it was considered likely in any event.  The judgment can be found <a href="https://www.bailii.org/ew/cases/EWHC/Admin/2024/2673.html" target="_blank" rel="noreferrer noopener">here</a>.

10th December 2024 | Parklane Plowden Pupillage Evening

We are pleased to be hosting a pupillage open evening on Tuesday 10th December 2024 in our Leeds 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 an 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 4th December 2024.  For more information about pupillages within Chambers, see our Pupillage Guide available <a href="https://www.parklaneplowden.co.uk/app/uploads/2023/12/Pupillage-Guide-2023.pdf" target="_blank" rel="noreferrer noopener">here</a> and our Pupillage Training Programme, available <a href="https://www.parklaneplowden.co.uk/app/uploads/2023/12/Pupillage-Training-Programme-Dec-2023.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.

21 November 2024 | Commercial Law with Lunch

Join our Commercial team for a PLP Commercial Law with Lunch. The seminar will take place in our Leeds office with sandwiches and refreshments on arrival.  Members of our specialist Commercial team will discuss the topics below.  <h3 class="wp-block-heading">Programme</h3>  12:00 - Registration and Sandwiches  12:30 - <a href="https://www.parklaneplowden.co.uk/our-barristers/adam-gould/" target="_blank" rel="noreferrer noopener">Adam Gould</a> - The Fine Line Between Competition and Catastrophe: Understanding Economic Torts  13:00 - <a href="https://www.parklaneplowden.co.uk/our-barristers/bryan-patterson-whitaker/" target="_blank" rel="noreferrer noopener">Bryan Patterson-Whitaker</a> - Sealing the Deal; Mastering Compromise Agreements  13:30 - Close   Please email <a href="mailto:events@parklaneplowden.co.uk" target="_blank" rel="noreferrer noopener">events@parklaneplowden.co.uk</a> to register.

Wholesale reform to adoption process is needed, says PLWG

The Public Law Working Group has called for wholesale reform of the adoption process <a href="https://www.parklaneplowden.co.uk/app/uploads/2024/11/PLWG-Adoption-Report.pdf" target="_blank" rel="noreferrer noopener">in a new report evaluating adoption in England and Wales</a>. The report, developed with contributions from social workers, academics, legal professionals and adoption agencies, aims to bring the adoption process in line with modern approaches to better meet the needs of children, adoptive families, and birth parents.  The report includes themes such as enhancing contact arrangements with birth families, simplifying international adoption, improving access to adoption records, and streamlining the legal process for adoption. The changes called for include the importance of allowing those who have been adopted greater access to their records and proposes a national protocol to manage adoption cases consistently and efficiently. The report also highlights the need for early and sustained support for birth parents.  President of the Family Division of England and Wales, Sir Andrew McFarlane, said: “I welcome all of the report’s recommendations and would like to thank all those who contributed to its development either by membership of the group or by responding to the consultation."  Parklane Plowden are a highly regarded set for public children matters and <a href="https://www.parklaneplowden.co.uk/expertise/family-children-barristers/" target="_blank" rel="noreferrer noopener">our barristers</a> are regularly instructed in the most complex of adoption cases. Our team regularly deliver expert training on the developing sphere of adoption cases, and have produced detailed breakdowns of the PLWG recommendations: • <a href="https://www.parklaneplowden.co.uk/post-adoption-contact-plwg-best-practice-a-guide/" target="_blank" rel="noreferrer noopener">Post Adoption Contact - PLWG Best Practice: A Guide</a> • <a href="https://www.parklaneplowden.co.uk/adoption-records-plwg-best-practice-a-guide/" target="_blank" rel="noreferrer noopener">Adoption Records - PLWG Best Practice: A Guide</a> • <a href="https://www.parklaneplowden.co.uk/practice-and-procedure-plwg-best-practice-a-guide/" target="_blank" rel="noreferrer noopener">Practice and Procedure – PLWG Best Practice: A Guide</a> • <a href="https://www.parklaneplowden.co.uk/international-adoption-plwg-best-practice-a-guide/" target="_blank" rel="noreferrer noopener">International Adoption – PLWG Best Practice: A Guide</a> • <a href="https://www.parklaneplowden.co.uk/consensual-adoption-plwg-best-practice-a-guide/" target="_blank" rel="noreferrer noopener">Consensual Adoption – PLWG Best Practice: A Guide</a>

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