<!-- wp:html --> <iframe width="560" height="315" src="https://www.youtube.com/embed/PgRsR5bvL1c" title="YouTube video player" frameborder="0" allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen=""></iframe> <!-- /wp:html --><!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Parklane Plowden's 'Law with Lunch' webinars bring you the latest law updates. </p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p> <a href="https://www.parklaneplowden.co.uk/our-barristers/anna-datta/">Anna Datta</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/sophie-watson/">Sophie Watson</a> consider the practicalities of running care home claims and the importance of determining whether the claim is a personal injury and clinical negligence matter.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Click on the above video to watch the webinar recording.</p> <!-- /wp:paragraph -->

<!-- wp:paragraph --> <p>The next webinar in our ‘Law with Lunch’ series of bitesize, lunchtime talks covering legal issues of the moment is not to be missed.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Thursday 25 January 2024 | 12:30 - 13:30</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Join employment specialists <a href="https://www.parklaneplowden.co.uk/our-barristers/dominic-bayne/">Dominic Bayne</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/andrew-webster/">Andrew Webster</a> as they discuss a practical guide to costs in the employment tribunal. </p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The talk will cover:</p> <!-- /wp:paragraph --><!-- wp:list --> <ul><!-- wp:list-item --> <li>When to apply for costs</li> <!-- /wp:list-item --><!-- wp:list-item --> <li>How to apply for costs</li> <!-- /wp:list-item --><!-- wp:list-item --> <li>The approach of the tribunal</li> <!-- /wp:list-item --><!-- wp:list-item --> <li>Assessing the amount of costs</li> <!-- /wp:list-item --></ul> <!-- /wp:list --><!-- wp:paragraph --> <p>Please register via events@parklaneplowden.co.uk </p> <!-- /wp:paragraph -->

<!-- wp:paragraph --> <p><strong><em>Paul, Polmear and Purchase and another v Royal Wolverhampton NHS Trust</em> [2024] UKSC 1</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>By way of three conjoined cases, the Supreme Court considered the issue of secondary victim claims in the context of medical negligence where the event giving rise to the psychiatric injury was distinct in time from the initial negligence to the patient.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong><em>Factual Circumstances of the Cases</em></strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>Paul</em>: Mr Paul attended hospital with chest pain. One year later, whist out with his daughters, he collapsed due to a heart attack, hit his head and suffered a brain bleed and died. Mr Paul’s daughters claimed for psychiatric injuries.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>Polmear</em>: Esme, a 6-year-old child, was misdiagnosed and as a result collapsed 6 months later. Her parents saw Esme lying on the floor and resuscitation attempts being made. One of her parents attempted CPR. Esme’s parents suffered with PTSD and depression. &nbsp;</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>Purchase:</em> Miss Purchase was misdiagnosed with a respiratory tract infection as opposed to pneumonia. Three days later, her mother, the claimant, went out for the evening. Upon her return, she found Miss Purchase unconscious with her phone in her hand. Efforts to resuscitate Miss Purchase were unsuccessful. The claimant found that she had a voicemail from her daughter recording her last minutes. The claimant suffered PTSD, anxiety and depression.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong><em>Court of Appeal</em></strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Before the Court of Appeal, there was no dispute that, in principle, secondary victim claims could be made for psychiatric injuries sustained in clinical negligence claims.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Court of Appeal held that it was bound by the five stage <em>Alcock </em>test as applied by the Court of Appeal in <em>Taylor v A </em>Novo [2013] EWCA Civ 194<em>. </em>This therefore meant that a claim could not succeed where the shocking event that gave rise to a secondary victim’s injuries was removed in time and space from the negligence that gave rise to that eventual shocking event.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>On that basis, the claims in each of these cases failed before the Court of Appeal but permission was granted to appeal to the Supreme Court.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong><em>Supreme Court</em></strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Supreme Court provided a lengthy judgment addressing secondary victim claims. This is a very significant judgement that clarifies a number of aspects of the test applied in secondary victims cases, but also suggests that the reasoning in many previous cases has been flawed.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em><strong>The Requirements for a Claim to Succeed</strong></em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Supreme Court endorsed the requirements established in <em>Alcock</em> as set out in <em>Frost v Chief Constable of South Yorkshire </em>[1999] 2 AC 455 that a claimant:</p> <!-- /wp:paragraph --><!-- wp:list {"ordered":true} --> <ol><!-- wp:list-item --> <li>Must have a close tie of love and affection with the person killed, injured or imperilled;</li> <!-- /wp:list-item --><!-- wp:list-item --> <li>The claimant must be close to the incident in time and space; and</li> <!-- /wp:list-item --><!-- wp:list-item --> <li>The claimant must have perceived the accident themselves.</li> <!-- /wp:list-item --></ol> <!-- /wp:list --><!-- wp:paragraph --> <p>The Supreme Court has clarified that there is no requirement for there to be:</p> <!-- /wp:paragraph --><!-- wp:list --> <ul><!-- wp:list-item --> <li>A ‘sudden shock’ giving rise to psychiatric injury.</li> <!-- /wp:list-item --><!-- wp:list-item --> <li>Nor does the event have to be horrifying, noting that this inevitably involves an undesirable comparison of different traumatic events.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --><!-- wp:paragraph --> <p>The court has also narrowed what is likely to be viewed as the immediate aftermath, criticising the extension of that principle. The court commented that the focus on whether there had been a single sequence of events gave rise to difficulties with interpretation and was an artificial exercise in separating out the index event and the aftermath.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em><strong>There must be an ‘accident’</strong></em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Supreme Court has made clear that the witnessing of an accident or the immediate aftermath is integral to secondary victim claims and the Court of Appeal had erred in failing to treat the issue of whether there was the occurrence of an accident as material.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Court clarified that an accident is “an external event which causes, or has the potential to cause, injury”. The Court affirmed that a claimant must witness the accident itself or the immediate aftermath for a secondary victim claim to succeed.&nbsp;</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>This need for an accident was held to be because:</p> <!-- /wp:paragraph --><!-- wp:list {"ordered":true} --> <ol><!-- wp:list-item --> <li>An accident is a discrete event, which could provide clarity and certainty in determining who is and is not a relevant claimant. &nbsp;</li> <!-- /wp:list-item --><!-- wp:list-item --> <li>Most people would accept that the correct line to be drawn in identifying claimants is to distinguish between those who witnessed an accident and those who did not.</li> <!-- /wp:list-item --><!-- wp:list-item --> <li>It can be difficult to distinguish between primary and secondary victims in accident cases where, for example, a mother and child are both put in danger and the mother would therefore fear for herself and her child.</li> <!-- /wp:list-item --></ol> <!-- /wp:list --><!-- wp:paragraph --> <p>The court also noted that it would be undesirable for end-of-life decisions to be complicated by questions of whether allowing a family member to see and be with a patient might give rise to potential liability.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em><strong>Duty of Care</strong></em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The court indicated that there has been insufficient focus in secondary victim claims in a medical negligence context on the question of whether doctors owe a duty of care to the family of patients.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The majority in this case held that it cannot be said that a doctor treating a patient has entered into a doctor patient relationship with any of the patient’s family and responsibility for their health is thereby assumed.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The court stated that the imposition of such a responsibility would go beyond what would be reasonably regarded as the nature and extent of the role of hospitals and doctors in current society.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em><strong>Judgment Conclusion</strong></em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The court concluded that it was necessary to restrict the class of claimants whose claims might succeed to those who are more closely and directly connected to the accident caused by the defendant and apply restrictions capable of being understood by ordinary people. This means, that for secondary victims to succeed, they must have been “present at the scene, witnessed the accident and have a close tie of love and affection with the primary victim”.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The court expressly stated that it was not expressing a view about claims where there was an accident that took place in a medical setting, such as the injecting of an incorrect drug or dose causing a witnessed adverse reaction.&nbsp;&nbsp;</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em><strong>Discussion</strong></em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>On the face of the judgment, it would appear that the Supreme Court has limited secondary victim claims in a medical negligence context with its finding that doctors do not owe a duty of care to the family of patients.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Nonetheless, the specific issue of whether or not a doctor owes a duty of care to a family member in a medical accident scenario has been expressly stated to have not been determined. In order for such a claim to succeed, a claimant will have to satisfy the criteria set out in <em>Frost. </em>This willinclude proving physical proximity to the accident or the immediate aftermath, along with establishing that there had been the assumption of a duty of care by the doctor to those family members.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Importantly, in a clinical negligence context, very few claims arise out of ‘accidents’. As such, it is likely that defendants will take a more robust approach in defending these claims and dispute the basic existence of a duty of care owed to the family members.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Even in claims where there are potential accidents, the definition of what will or will not amount to an accident is likely to remain contentious and disputed, and what is likely to be held to be within the immediate aftermath will now be much narrower.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Moreover, a claimant will still have to prove they are worse off than they would have been as a result of bereavement alone and can only recover damages in respect of that portion of the injury (<em>Hinz v Berry </em>[1970] 2 QB 40)<em>.</em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>In reaching their decision, the majority judgment (6-1) has effectively overturned much of the reasoning of previously decided medical negligence claims. It appears to be a judgment in line with other recent authorities by the Supreme Court in the field of clinical negligence and personal injury claims: adopting a more traditional less expansive approach to the law including a shift away from paternalism.</p> <!-- /wp:paragraph -->

<!-- wp:paragraph --> <p>We are pleased to announce we will be sponsoring and attending the AvMA Cerebral Palsy &amp; Brain Injury Cases Conference on 01 February 2024 at the Leeds City, Hilton Hotel.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Parklane Plowden's&nbsp;<a href="https://www.parklaneplowden.co.uk/our-barristers/anna-datta/">Anna Datta&nbsp;</a>will be chairing the event with&nbsp;<a href="https://www.parklaneplowden.co.uk/our-barristers/andrew-axon/">Andrew Axon&nbsp;</a>speaking on Apportionment and Material Contribution.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The conference will discuss and analyse the key areas currently under the spotlight in Cerebral Palsy and Brain Injury Cases so that lawyers are aware of the challenges required to best represent their clients.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Further details and registration can be found<a href="https://www.avma.org.uk/events/cerebral-palsy-brain-injury-cases-conference-ensuring-you-do-the-best-for-your-client/">&nbsp;here</a>. We look forward to seeing you there. </p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p> </p> <!-- /wp:paragraph -->

<!-- wp:paragraph --> <p>We are pleased to confirm we intend to recruit 5 pupils for the following specialist pupillages:</p> <!-- /wp:paragraph --><!-- wp:list --> <ul><!-- wp:list-item --> <li>Civil &amp; Employment Pupillage based in Leeds;</li> <!-- /wp:list-item --><!-- wp:list-item --> <li>Civil &amp; Employment Pupillage based in Newcastle;</li> <!-- /wp:list-item --><!-- wp:list-item --> <li>Family Pupillage based in Leeds;</li> <!-- /wp:list-item --><!-- wp:list-item --> <li>Family Pupillage based in Newcastle;</li> <!-- /wp:list-item --><!-- wp:list-item --> <li>Commercial &amp; Chancery Pupillage based in Leeds.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --><!-- wp:paragraph --> <p>A Civil &amp; Employment Pupillage will involve exposure primarily to personal injury, clinical negligence and employment work, with opportunities to experience some of our other civil practice areas too. We will seek to adapt the pupillages according to the interests of the pupil, having regard to Chambers’ business needs at the time.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>A Family Pupillage will involve exposure to all aspects of family law including public and private child work, applications under Part IV Family Law Act 1996, matrimonial finance, financial provision for children under Schedule 1, cohabitation disputes and Inheritance Act applications, as well as to our expanding area of practice within the Court of Protection. Members of Chambers regularly represent local authorities, parents, children, the Official Solicitor, as well as private clients.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>A Commercial &amp; Chancery Pupillage will involve exposure to commercial and chancery litigation. This will include general commercial litigation, banking and finance, partnership disputes, insolvency work, probate work, claims under the Inheritance (Provision for Family and Dependants) Act 1975 and property litigation.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The applications window runs from<strong>&nbsp;12:01am on Wednesday 3^rd&nbsp;January 2024 to Wednesday 7^th&nbsp;February 2024 at 11:59pm</strong>. All applications must be received during this period.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong>How to Apply</strong><strong></strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Applications need to be made on the relevant Application Form which you find:</p> <!-- /wp:paragraph --><!-- wp:list --> <ul><!-- wp:list-item --> <li>Civil &amp; Employment Pupillage Application Form:&nbsp;<em><a href="https://www.parklaneplowden.co.uk/app/uploads/2023/12/Civil-Pupillage-Application-Form-for-2025.docx">here</a></em></li> <!-- /wp:list-item --><!-- wp:list-item --> <li>Family Pupillage Application Form:&nbsp;<em><a href="https://www.parklaneplowden.co.uk/app/uploads/2023/12/Family-Pupillage-Application-Form-for-2025.docx">here</a></em></li> <!-- /wp:list-item --><!-- wp:list-item --> <li>Commercial &amp; Chancery Application Form:&nbsp;<em><a href="https://www.parklaneplowden.co.uk/app/uploads/2023/12/C-C-Pupillage-Application-Form-for-2025.docx">here</a></em></li> <!-- /wp:list-item --><!-- wp:list-item --> <li>Equal Opportunities Monitoring Form:&nbsp;<em><a href="https://www.parklaneplowden.co.uk/app/uploads/2023/12/Equal-Opportunities-Monitoring-Form.docx">here</a></em></li> <!-- /wp:list-item --></ul> <!-- /wp:list --><!-- wp:paragraph --> <p>We are hosting an open evening on Wednesday 10^th January 2024 in our Leeds Chambers starting at 6pm. It will be 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.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>If you would like to attend, please RSVP to&nbsp;<a href="mailto:events@parklaneplowden.co.uk">events@parklaneplowden.co.uk</a>&nbsp;by 4^th&nbsp;January 2024.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Further details on how to apply for pupillage can be found <a href="https://www.parklaneplowden.co.uk/pupillages/">here</a>. </p> <!-- /wp:paragraph -->

<!-- wp:paragraph --> <p>Join clinical negligence specialists <a href="https://www.parklaneplowden.co.uk/our-barristers/anna-datta/">Anna Datta</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/sophie-watson/">Sophie Watson</a> as they consider the practicalities of running care home claims and the importance of determining whether the claim is a personal injury and clinical negligence matter.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Please email events@parklaneplowden.co.uk if you would like to attend this webinar. </p> <!-- /wp:paragraph -->

<!-- wp:paragraph --> <p>Our Leeds and Newcastle offices will be closing on Friday 22 December 2023. Our opening hours over Christmas are:</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>23rd - 26th December 2023 - closed<br>27th - 29th December 2023 - open as usual with skeleton staff<br>30th December 2023 - 1st January 2024 closed<br>2nd January 2024 – Open as usual</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Parklane Plowden Barristers’ Chambers wish you all a very Merry Christmas and a happy, prosperous and healthy New Year! We look forward to continuing to work with you in 2024.</p> <!-- /wp:paragraph -->

<!-- wp:paragraph --> <p>This judgment concerned an application made for a care order and considered the use of s.20 agreements following the recent Court of Appeal decision of <em>Re S (a child) and Re W (a child) [2023] EWCA Civ. </em>This case is also a helpful reminder that there is no automatic prohibition on contact taking place overseas, even to a Non-Hague Convention Country.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong>Summary of Judgment:</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>His Honour of Judge Willans was concerned with the welfare of a 13-year-old boy who was subject to an application for a care order. The local authority (‘LA’) was concerned with allegations of domestic abuse, the child having low mood and suicidal thoughts, mother being evicted from her property, mother physically chastising the child, mother struggling to care for the child alone, limited progress being made under the Child Protection Plan, father residing abroad, father previously being inconsistent with contact, and mother refusing to engage with the LA. Due to these concerns, an interim care order was made in February 2023 and the child was placed into temporary foster care.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>During proceedings, the child was largely opposed to having contact with his mother, however, was having regular contact with his father. The child had overnight contact with his father overseas in a Non-Hague Convention Country. Prior to the final hearing, the child met with HHJ Willans and confirmed he did not wish to return home to his mother.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>At the outset of proceedings, the LA and father sought for the child to be placed under a supervision order and child arrangements order (live with father); this was on the basis that the child would be placed into a privately funded boarding school in the UK or abroad. This view altered once the child made clear that he opposed being placed overseas and going to a boarding school. The father raised whether a s.20 Children Act 1989 (‘s.20 agreement’) foster care placement should be made instead of a care order. Mother sought for the return of the child into her care but supported a s.20 agreement in the interim until she had obtained a suitable housing.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>During mother’s evidence, she maintained that the child wanted to live with her and that that the crux of LA’s decision to issue proceedings was because of her housing situation. Mother confirmed she did not trust professions, would not work with the LA going forward and viewed physical chastisement as a reasonable action to take. The social worker concluded that a s.20 agreement would not be in the child’s best interest given the difficulty with the parents communicating, father living abroad and father at times being non-contactable. Having reflected on the evidence and the strong wishes of the child, the father agreed that a care order was necessary.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>In reaching his judgment, HHJ Willans placed particular emphasis on the child’s wish to remain in the placement where he was thriving, the importance of the child having consistent and predictable care on a safe basis, being in a placement which upholds his cultural identity and ethnicity, mother’s lack of insight into the LA’s concerns and her unwillingness to work with the LA. It was determined that it would be in the child’s best interests for a care order to be made and for the child to be placed into foster care. In relation to contact, it is agreed that the child will maintain his relationship with his father and mother’s contact will progress organically; it was felt specific contact arrangements may increase the likelihood of the relationship breaking down. HHJ Willans confirmed he would write a short letter to the child to inform him of his decision.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong>Discussion</strong>:</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong>S.20 Agreements</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>s.20 agreements allow parents to enter into a written agreement for their children to be voluntarily accommodated by a local authority. S.20 agreements do not provide a local authority with overriding parental responsibility (in contrast to a care order) and such agreement can be terminated by a parent at any point.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Although s.20 agreements are often utilised for short term placements, it is now well established through <em>Re S (a child) and Re W (a child) [2023] EWCA Civ 1</em> that such agreements can regulate long-term placements. In this case, King LJ recognised that a s.20 agreement does not provide a statutory limit of how long a child can be accommodated for and provided there is parental support for the placement and unlikely disruption, s.20 agreements provide the least interventionalist approach the court should seek to achieve. <em>Re S (a child) and Re W (a child) </em>established it would be disproportionate to make care orders where the only concerns were that a parent may terminate a s.20 agreement or that a child’s future behaviour may become challenging.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Despite this, HHJ Willans determined a s.20 placement would not be appropriate in this case. A key concern was mother’s refusal to work with the LA. This concern was supplemented by mother seeking the return of the child into her care, poor communication between the parents, and father residing outside of the country.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>This judgment is a helpful reminder that while s.20 agreements can be made on a long-term basis, each case will be determined on its own set of facts. Given s.20 agreements require cooperation from those involved, a real focus will be on whether a parent has a proven and genuine willingness to work with the local authority. The court will also consider the practicalities of the arrangements and if it would be in a child’s best interest for a local authority to hold overriding parental responsibility.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong>Contact Overseas</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>At paragraph 5 of his judgment, HHJ Willans stated:<a>&nbsp;<em>“</em><em>It is an unusual feature of this case that, by agreement, the child has spent time overseas with his father in the course of the proceedings - including in country X which is a Non-Hague Convention Country</em></a><em>”.</em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Understandably, whilst in care proceedings, local authorities and the court may be reluctant to permit contact overseas. As care proceedings can conclude that a child is to the removed from their parents, should contact take place overseas, there is a possible incentive for parents not to return to England and Wales; such concerns are heightened if a Non-Hague Convention Country is involved.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>This case, however, reiterates that an interim care order does not create a statutory prohibition on overseas contact taking place. Rather, each case will be considered on its facts. It is welcoming to see that the LA in this case, despite the well-known associated risks, did not prevent contact with the child’s father taking place overseas. This judgment is a useful reminder that contact can take place overseas and should a local authority seek to prohibit such contact without justified reasons, that decision should be challenged. A parent’s transparency and proven willingness to work with a local authority will be an important factor considered when such situation arises.</p> <!-- /wp:paragraph -->

<!-- wp:paragraph --> <p>We are pleased to be hosting a pupillage open evening on Wednesday 10^th January 2024 in our Leeds Chambers starting at 6pm.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>If you would like to attend, please RSVP to&nbsp;<a href="mailto:events@parklaneplowden.co.uk">events@parklaneplowden.co.uk</a>&nbsp;by 4^th&nbsp;January 2024.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>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">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">here</a>. You can also visit our <a href="https://www.parklaneplowden.co.uk/pupillages/">Pupillage Page</a> on the website.</p> <!-- /wp:paragraph -->

<!-- wp:paragraph --> <p><strong>Introduction</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>In 2022, <a href="https://www.bailii.org/uk/cases/UKSC/2022/21.html"><em>Harpur Trust v Brazel [2022] UKSC 21</em></a> brought unwelcome news for employers who had become accustomed to applying a pro-rata percentage to workers’ annual leave entitlement.&nbsp; More recently, in <a href="https://www.supremecourt.uk/cases/docs/uksc-2019-0204-judgment.pdf"><em>Chief Constable of Police Service of Northern Ireland and Another v Agnew and Others [2023] UKSC 33</em></a>, the Supreme Court has confirmed that the different types of leave (see below) all form part of a composite ‘pot’.&nbsp; In November 2023, the Government has produced draft regulations aimed at simplifying matters (<a href="https://www.legislation.gov.uk/ukdsi/2023/9780348253269/contents">The Employment Rights (Amendment, Revocation and Transitional Provisions) Regulations 2023</a>) (“the Draft Regulations”).&nbsp; So where exactly does this leave us?</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong>Calculating Holiday Pay for Part-Year Workers</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>Harper Trust v Brazel</em> was a blow for many employers with workers who did not work the full number of weeks in the year.&nbsp; Employers like Harper Trust have been calculating 12.07% of the total number of hours worked, then multiplying this by the hourly rate.&nbsp; That, however, failed to take account of accumulation of leave during weeks that were not worked.&nbsp; In a nutshell, the Supreme Court held that this ‘Proportion Method’ was not compatible with the requirements of the ERA 1996.&nbsp; Accordingly, it held that the ‘Calendar Method’ is appropriate: working out the total number of hours worked over the reference period, <em>excluding </em>any full weeks where no work was done.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Government has now proposed legislation in response to this judgment.  The Draft Regulations are expected to come into force on 1 January 2024 but, in respect of holiday, will only affect holiday years beginning on or after 1 April 2024.  The Draft Regulations permit employers to calculate accrual as 12.07% of hours worked during the pay period (new Regulation 15B of the WTR.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong>Agnew</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The focus of the <em>Agnew</em> judgment was, not surprisingly, on whether a break of three months between holiday pay underpayments prevents an underpayment being part of a ‘series’ (it does not).&nbsp; However, towards the end of the judgment the Supreme Court turned its attention to the different types of annual leave and whether leave must be taken in a particular sequence.&nbsp; As is widely known, under Regulation 13 of the WTR, workers are entitled to 4 weeks’ annual leave, derived from the minimum leave requirement set out in the Working Time Directive [2003/88/EC] (“the Directive”).&nbsp; The further 1.6 weeks’ entitlement is set out in Regulation 13A of the WTR.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The distinction between the different entitlements is not academic.&nbsp; It makes a difference on carry over of leave.&nbsp; One can also, for example, consider what constitutes a week’s pay under Regulation 16 of the WTR.&nbsp; According to <a href="https://www.bailii.org/ew/cases/EWCA/Civ/2004/359.html"><em>Bamsey and Others v Albon Engineering and Manufacturing PLC [2004] EWCA Civ 359</em></a>, section 234 of the ERA 1996 is applicable and excluding voluntary overtime was lawful.&nbsp; However the Court of Appeal has held that, so far as EU law (i.e. the Directive) is concerned, ‘normal pay’ does not require payments to be compulsory under the contract (<a href="https://www.bailii.org/ew/cases/EWCA/Civ/2019/947.html"><em>East of England Ambulance Service NHS Trust v Neil Flowers and others [2019] EWCA Civ 947</em></a><em>)</em>.&nbsp; Caselaw therefore suggests that for leave derived from the Directive (Regulation 13), overtime can be taken into account if regular and/or recurring, whereas Regulation 13A requires it to be contractually guaranteed by the employer and compulsory for the employee.&nbsp; The approach in <em>Flowers </em>is reflected in the Draft Regulations. In a new Regulation 16(3ZA), in respect of entitlement under Regulations 13 of the WTR and (the new) Regulation 15B, a week’s pay includes (amongst other things) overtime payments which have been paid regularly in the 52 weeks preceding the calculation date.&nbsp;</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Is Regulation 13 and 13A leave to be taken in sequence or considered as a ‘composite pot’? According to <em>Agnew</em>, <em>“a worker is entitled to enjoy leave from whichever legal source it may be derived and that there is no requirement as a matter of law that the leave derived from different sources must be taken in a particular order”</em>.&nbsp; Furthermore, <em>“workers are likely to look at their annual leave entitlement as a composite whole”</em>.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>This does leave employers with a potential headache.&nbsp; They could simply operate a ‘composite pot’ in its simplest form: treating all leave the same, no matter the source.&nbsp; This, however, would require them to afford workers with the more generous aspects across the board (see calculation of a week’s pay, above), regardless of the source of the leave.&nbsp; Alternatively, employers could consider treating the different aspects as they have been, but combining the leave itself into a pot and dividing it between the different types of leave each time that entitlement is exercised.&nbsp; That, however, might be an administrative nightmare.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The solution may lie in paragraph 137 of the judgment: <em>“if <strong>and in</strong> <strong>so far as it is not practicable to distinguish between different types of leave</strong> then all the leave to which the worker is entitled must form part of a single, composite pot…”</em> [emphasis added].&nbsp; When does it become practicable to distinguish? That remains to be seen, and the judgment offers no guidance.&nbsp; Clear contractual clauses <em>may </em>be sufficient, setting out the entitlement, its source, how it is to be treated, and in what order it must be taken.&nbsp; It seems that firm contractual direction is going to be the minimum required by Tribunal’s following <em>Agnew</em>.&nbsp;</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong>And in Other News</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The draft Regulations permit rolled up holiday for irregular hours or part-year workers, if holiday pay is calculated at 12.07% of all pay for work done, if the additional 12.07% is paid at the same time as pay for the work done, and if the holiday pay is itemised separately (new Regulation 16A).</p> <!-- /wp:paragraph -->