Courts In England Research Articles

Linked lives: Gender, family relations and recurrent care proceedings in England

In the wake of a “national care crisis” in England, an increasing number of parents return to the family court as repeat respondents in care proceedings and lose successive children from their care. Despite considerable progress in understanding the trends and patterns of mothers' (re)appearances in care proceedings, knowledge of fathers and of parents' family relationships in recurrent care proceedings remains very limited. Whilst such relationships are fundamentally at stake in care proceedings, they remain largely unexplored. Analyzing population-level administrative data from the family courts in England (2007/08–2017/18, N = 25,457 recurrent parents), we have, for the first time, uncovered a five-fold typology of family relations between mothers, fathers and children as they navigated repeated sets of care proceedings. We show that each identified profile is characterized by parents' gender as well as distinctive life-course positions of the parents and children. Our findings show that a substantial number of fathers are ‘visible’ in care proceedings, and that the majority of those that return to court do so with the same partners and children, as part of either a recurrent family or recurrent couple. Mothers' recurrence is characterized by their re-partnering experiences and lone appearances before the court. The results underscore the value of applying a relational approach in social work research and practice, to build a fuller picture of recurrent care proceedings. This research provides new evidence to inform the development of holistic, gender-sensitive and father-inclusive services in the English family justice system.

Communication and cross-examination in court for children and adults with intellectual disabilities: A systematic review

Courts in England, Wales and Northern Ireland have identified children and adults with intellectual disabilities (ID) as vulnerable witnesses. The call from the English Court of Appeal is for advocates to adjust questioning during cross-examination according to individual needs. This review systematically examined previous empirical studies with the aim of delineating the particular communication needs of children and adults with ID during cross-examination. Studies utilising experimental methodology similar to examination/cross-examination processes, or which assessed the communication of actual cross-examinations in court were included. A range of communication challenges were highlighted, including: suggestibility to leading questions and negative feedback; acquiescence; accuracy; memory and understanding of court language. In addition, a number of influencing factors were identified, including: age; IQ level; question styles used. This review highlights the need for further research using cross-examination methodology and live practice, that take into consideration the impact on communication of the unique environment and situation of the cross-examination process.

Appealing and challenging awards

This paper discusses the two main methods of challenging awards made under Section 10 of the Party Wall etc. Act 1996 (‘the 1996 Act’), namely an appeal under that Act and a challenge based upon the surveyor or surveyors making that award having exceeded their jurisdiction — ultra vires. The paper details the legal basis, time limits, procedure and practical implications of challenges to party wall awards on both bases, primarily by way of proceedings in the Courts of England and Wales. It discusses both the technical and legal requirements of such challenges, as well as the practical considerations to be taken into account by the parties and professionals involved.

First Impressions: Footprints as Forensic Evidence in Crime in Fact and Fiction

As skilled ‘detectives’, dress historians are experts in closely reading surviving artefacts and using them to glean evidence of the lives of those who made and wore them. With shoes and footwear, this rich, object-based approach can yield new information that challenges established histories. This article turns traditional object analysis on its head by interrogating instead the impressions and traces that objects leave behind, taking a forensic approach to footwear. It examines the rise of scientific policing and the history of footprints as a key form of evidence in crime fact and fiction. Five key British and Francophone stories and novels written between 1833 and 1931 provide a barometer of how narratives of the capital offence of murder and footwear evidence shifted during this century. These are interwoven with contemporary forensic science texts, police handbooks, newspaper articles and trial transcripts from the Central Criminal Court of England and Wales, commonly known as the Old Bailey. This article charts the shift in perceptions that occurred between 1830 and 1890, which I call the ‘Age of Conviction’, a period where there was a widespread belief in the veracity of prints, to an ‘Age of Suspicion’ from 1890 to 1930, as more scientific and critical methods of examination and recording made detectives and the public sceptical and wary of deception.

Probation practice in a velvet cage? Specialist court work after probation privatisation in England and Wales

This article presents findings of a study of pre-sentence probation work in Magistrates’ courts in England and Wales in the wake of a process of partial privatisation of probation services in that jurisdiction. Specifically it addresses the subjective experiences of probation workers in two court teams and seeks to make sense of the finding that, despite clear evidence of a process of McDonaldization in the court setting, probation practitioners in this study experienced their work in terms that were largely positive. Using a Weberian analytical framework, it is argued that this finding can only be fully understood with reference to the recent history of unprecedented rupture in the probation arena, and to a generalised perception of the court team as a ‘place of safety’ in an otherwise hostile and turbulent field. Thus, whilst confined in Weber’s metaphorical cage, practitioners experienced this less as a cage of iron than of rubber and velvet.

Patel v Mirza and the Future of the Illegality Doctrine in New Zealand

In 1775, Lord Mansfield CJ held that no court will lend its aid to a man who founds his cause of action on an immoral or an illegal act. From this simple dictum sprang a common law doctrine so complicated that it would take the courts 241 years to pronounce a definitive view on the correct approach to its application. Historical confusion about whether the illegality doctrine is an inflexible rule of law, or a discretionary public policy doctrine has generated a mass of inconsistent authority throughout the Commonwealth. In Patel v Mirza, the Supreme Court of England and Wales held that the illegality doctrine should be applied in a flexible manner, having due regard to the various policies militating for and against the application of the doctrine. This paper examines the historical position of the illegality doctrine in New Zealand and explores whether there is anything to be gained by the adoption of Patel in a New Zealand context.

The Visibility of Children Whose Mothers are Being Sentenced for Criminal Offences in the Courts of England and Wales

Set within a general understanding of the judicial interpretation of mitigation, and the development of sentencing guidelines, this article presents a study exploring the visibility of children within the sentencing process, and the way in which judges in the courts of England and Wales regard dependent children as a mitigating factor in sentencing. The findings, taken from the results of an analysis of sentencing transcripts from court cases in England and Wales, indicate that the visibility of children of defendants is increased at the initial sentencing hearing if the judge requests a pre-sentence report. In appellate decisions, the children have enhanced visibility as their limited impact on mitigation at first instance usually forms part of the grounds of appeal. There is, however, divergence on a case by case basis as to their impact on mitigation. In offences where a deterrent theory of punishment underpins the sentencing guidelines, the sentences have higher starting points and judges are less able to take the personal mitigation of the defendant’s dependent children into consideration. The discussion then considers the impact of these findings on the broader debates about the punitive impact of maternal imprisonment on children, issues of secondary victimisation, vulnerable populations and human rights.

The concept of business judgment

AbstractCategorising something as a business judgment can provide directors with a powerful shield from accountability. It has been said that the courts in England and Wales defer to directors’ business judgments and directors’ decisions are protected from review in other jurisdictions by a business judgment rule. Yet what a business judgment is has never been addressed, and so precisely what is being protected, and why, is unclear. This paper analyses case law in England and Wales and key Australian and US cases to answer this question. It argues that the courts use the term judgment in two senses: an ability, and a decision sense, and that business judgment in both senses can be linked to Knight's concept of entrepreneurial judgment, and directors’ wealth creation function. Conversely, decisions that are linked to directors’ corporate governance function and are less easy to categorise as entrepreneurial are less likely to be viewed as business judgments.

‘Working’ the international child protection case: a snapshot of local authorities’ experiences within an evolving legal context

ABSTRACTChild protection proceedings often concern children with international connections. In recent years, the courts of England and Wales have handed down a number of significant judgments examining the application of international legal instruments (in particular Brussels IIa) to care proceedings. This article considers the impact of court judgments on the practical ‘working’ by Local Authorities of international child protection cases. A case study was conducted, oriented by socio-legal theory, consisting of a small number of qualitative interviews with Local Authority lawyers and social workers. The article concludes that some judgments have acted as a catalyst to change working practices for Local Authorities. However, international child protection cases present a variety of challenges for Local Authorities, and judgments provide an imperfect site for the provision of procedural and substantive guidance in this complex area. Further, there was often a tension between the need to conscientiously adhere to such guidance, and the welfare needs of the children with whom the Local Authority was concerned.

Taking capacity seriously? Ten years of mental capacity disputes before England's Court of Protection

Most of the late 20th century wave of reforms in mental capacity or competence law were predicated upon the so-called ‘functional’ model of mental capacity, asking not merely whether a person had a mental disorder or disability but rather whether they were capable of making a specific decision (or decisions) at a specific point of time. This model is now under sustained challenge, most notably from the Committee on the Rights of Persons with Disabilities, and this challenge has focused a spotlight on the difficulty of applying the legally ‘neat’ concepts of the functional model of mental capacity across the full complex spectrum of human life.This paper presents a review, in two parts, of the first ten years of the Court of Protection, a specialist mental capacity court in England and Wales which applies a functional model of mental capacity.The first part outlines the history of the functional model in England and Wales, and the development of this specialist mental capacity court (Court of Protection), created by the Mental Capacity Act 2005. The second part presents an empirical and case-based study of 40 published cases of capacity disputes presented to the Court of Protection, or to the Court of Appeal on appeal from the Court of Protection, during the first ten years of its existence.The authors found that in 70% of cases the subject of proceedings (or P) had either a learning disability or dementia, and the court ruled on P's capacity for a wide range of issues, most commonly residence, care and contact. The judge considered the support principle, or whether practical steps were taken to maximise P's capacity, in 23 of 40 (57.5%) cases. The subject P was determined to have capacity in 13 cases, to lack capacity in 22 cases, and in 5 cases P was found to have and lack capacity for different issues before the court. The functional inability to use or weigh relevant information was most commonly cited by the judge, being cited in all but 2 cases in which P was determined to lack capacity and inabilities were cited. The propensity for the system to learn was shown by an increase in the proportion of cases which considered the ‘causative nexus’ from 2013, when a Court of Appeal case emphasised that impairment must not merely be present alongside functional inability but must be the causal basis of inability.The authors conclude that whilst the Court of Protection is still on a learning curve, its work provides a powerful illustration of what taking capacity seriously looks like, both inside and outside the courtroom. The implications for judges, lawyers and psychiatrists that can be drawn from the study are generalisable to other comparable socio-legal frameworks in which mental capacity or competence plays a role and is likely to do so for the foreseeable future.

The Evolution of Copyright Website Blocking In the UK: Live Blocking Orders

Since the first copyright website blocking order issued in 2011, an evolution has occurred in the UK regarding — among other things — the type of blocking. Recently, the High Court of England and Wales granted the application of the Football Association Premier League for a live blocking order against a number of major UK ISPs. The court held that it had jurisdiction under s.97A of the Copyright, Designs and Patents Act to order relevant ISPs to temporarily block access to streaming services giving unauthorised access to the right holder’s content (football matches). This contribution discusses the implications of these decisions against earlier UK case law and comments on possible future developments of s.97A orders.

Feminist Relational Contract Theory: A New Model for Family Property Agreements

In this article, a new model named Feminist Relational Contract Theory (FRCT) is explained, justified, and applied to the context of family property agreements and specifically nuptial agreements. Most nuptial agreements are created amidst a complex web of power relationships and the dynamic of these relationships often evolves over time. However, the courts in England and Wales have not yet found a way to recognize this without adopting a paternalistic approach. This article proposes an alternative that could, in practice, recognize issues of power between parties entering family property agreements, exploring a recent Australian case on nuptial agreements which adopts a more contextual understanding of contract law.

High Court of England and Wales considers ‘right to be forgotten’ for the first time

High Court of England and Wales considers ‘right to be forgotten’ for the first time

Direct harms and social consequences: An analysis of the impact of maternal imprisonment on dependent children in England and Wales

This article draws upon research with children whose mothers were imprisoned in England and Wales, to investigate the impacts of maternal imprisonment on dependent children. The research directly engaged with children, in accordance with Article 12 of the UNCRC 1989, and is set within an examination of the differentiated treatment in the family and criminal courts of England and Wales of children facing state initiated separation from a parent. The article explores children’s ‘confounding grief’ and contends that this grief originates from social processes, experienced as a consequence of maternal imprisonment. ‘Secondary prisonization’ is characterized by changes in home and caregiver and the regulation of the mother and child relationship. ‘Secondary stigmatization’ occurs when children are stigmatized by virtue of their relationship with their mother. These harms to children call into question the state’s fulfilment of its duty to protect children under Article 2 of the UNCRC 1989.

Privity and Subcontracting in Multimodal Transport — Diverging Solutions

When cargo owners engage transport intermediaries to arrange the logistics of carriage, these intermediaries regularly issue multimodal bills of lading and subcontract the actual carriage. This creates a gap in contractual privity between cargo owners and the actual carriers, which can affect the downstream subcontractors’ ability to enforce their standard terms against the cargo owners. While this is an international commercial problem, even among the major common law traditions courts have reacted with remarkably varied solutions. Courts in England and the broader Commonwealth have addressed the problem through a bailment framework, while courts in the United States have utilized a form of agency reasoning. This article examines these varying approaches and compares the innovative ways in which courts have responded to the challenges of multimodal subcontracting in international cargo transport.

Transforming Summary Justice: Modernisation in the Lower Criminal Courts. By Jenni Ward (London: Routledge, 2017, 164 pp. £93.99)

Following the 2007/8 financial crash, Her Majesties Courts and Tribunals Service (HMCTS) was confronted with a challenge: to make cost savings and, at the same time, improve the quality of justice. This was the message in the Ministry of Justice (2012) report Swift and Sure Justice, as it called upon criminal justice services to ‘achieve better for less’ (p. 20). Since then, critics have raised concerns about the changes that are ongoing in the Magistrates courts of England and Wales, claiming that there has been a rise in morally questionable ‘DIY defence’ practices and that HMCTS has been making use of unfair ‘trial by Skype’ initiatives (see Doward and Dare 2016; Robins 2017). Jenni Ward’s book, Transforming Summary Justice: Modernisation in the Lower Criminal Courts, speaks to such contemporary, ongoing concerns. Ward identifies, and rightly so in my opinion, that there has been a lack of research conducted by independent, critical researchers into the delivery of justice in the lower courts. In being prompted by critics concerns regarding due process and in identifying a research gap, Ward set out to investigates the quality of summary justice in England and Wales.

Transparency, Data Protection and the Law Courts of the Future

AbstractThis article by Paul Magrath examines the tensions between data protection and transparency in the context of a long overdue digital revolution in the courts of England and Wales. Many traditional hearings are being replaced by virtual or video-conference type hearings, and may in time be dealt with by an online court. There are concerns that open justice may suffer. Yet any attempt to remedy this with more transparent scrutiny of court information will need to conform to the stricter data protection regime under GDPR as well as respecting the privacy of litigants and the presumption of innocence. The author is Head of Product Development and Online Content with ICLR and a trustee of the Transparency Project.

The Full Recovery of Third-Party Funding Costs in Arbitration: To Be or Not to Be?

The Essar v. Norscot decision rendered by the High Court of England and Wales in 2016 has opened the door, or at least a window, for the recovery of the full fees of third party funding arrangements in international commercial arbitration. The recoverability of the success fees or premiums payable under a third-party funding (TPF) agreement as costs in arbitration can be criticized on three fundamental and overlapping bases. First, the distinction between funds actually advanced by the third-party funder and a premium is crucial. Secondly, the arbitrator’s discretion is defined and limited by law and should focus primarily on the allocation of costs rather than the definition of the recoverable costs. Finally, an award for the full recovery of third party funding fees should only be made on a clearly defined legal basis. In addition, there are a number of policy considerations which point against the recoverability of the full costs of TPF. The authors recommend modifications to institutional arbitration rules and national arbitration laws to clarify issues related to the recoverability of third party funding costs in arbitration. In the meantime, commercial parties may consider including more detailed contractual provisions to avoid any unforeseen or undesired liability for the costs of TPF.

Children of the revolution? The counter-culture, the idea of childhood and the case of Schoolkids Oz

On June 23rd 1971, a momentous trial began at London’s Old Bailey, the Central Criminal Court of England and Wales. In the dock were three young men, Richard Neville, Jim Anderson and Felix Dennis, the editors of Oz, an “underground” magazine. They faced charges relating to issue 28 of the magazine, published in May of the previous year as Schoolkids Oz. The Oz Trial was the longest-ever obscenity trial in British legal history, lasting nearly six weeks, and it became one of the most notorious “show trials” of the British counter-culture. Yet while the trial focused in great detail on the parts of Schoolkids Oz that were deemed obscene, relatively little attention was paid – either at the time or subsequently – to the publication as a whole. At the invitation of its editors, Oz 28 had been produced (at least in part) by schoolchildren; and a good deal of the outrage that it provoked was to do with its affront to traditional notions of what was appropriate for children to see. As such, it raises some interesting questions about the place of “childhood” – that is, of ideas of childhood, rather than the experience of actual children – within the counter-culture of the time. This article explores some of the tensions and contradictions that were at stake in these ideas, firstly in general terms and subsequently in relation to the specific instance of Schoolkids Oz.

High Court of England and Wales grants stream blocking order to UEFA

High Court of England and Wales grants stream blocking order to UEFA