Private Law Proceedings Research Articles

Being made visible: Responding to complex needs created by child removal in the Family Court

ABSTRACT The transfer of residence (aka child removal) when domestic abuse is a factor appears to have increased as a practice to resolve challenging child arrangements in public and private law proceedings. Minimal data exists regarding the transfer of residence in public law and the number of private law orders made each year is less clear. Serious concerns about the safety of the family courts continue to be raised, including expert reports recommending the transfer of residency. Following, often harrowing, removals mothers report how they are left to manage complex needs while still being expected to ‘fight’ for their child’s return. In 2022, Project Lighthouse was founded in response to the growing population of mothers who have endured domestic abuse and child removal The charity is beginning to understand the impact and lifelong trauma caused by child removal and, often, is a mechanism of coercive control hidden in plain sight of the family court. Focusing mainly on doctoral and peer research, this paper discusses how mothers’ lived experiences suggest that child removal in private law proceedings is increasing. The paper concludes by calling for urgent research focusing on the impact of child removal, which will help increase much needed awareness.

İDARİ YARGIDA 6459 SAYILI KANUN DEĞİŞİKLİĞİ SONRASI KISMİ DAVA İHTİMALİ

Özel hukuk yargılamasında düzenlenen dava türlerinden biri olan kısmi dava, aynı hukuki ilişkiden kaynaklanan alacağın veya hakkın tamamının ilk başta belirli bir kısmının talep edilerek dava açılmasıdır. Hukuk Usulü Muhakemeleri Kanunu zamanında da var olan ancak ilk kez açıkça Hukuk Muhakemeleri Kanunu madde 109 ile düzenlenen bu dava türü ile davacılar ilk davaya konu edilen kısım için aldıkları hükümle bir nevi ikinci açacakları davaya da tespit hükmünü dolaylı yoldan kurdurmuş olurlar. Bu şekilde özel hukukta açılan davalarda davacılar isterlerse ıslah imkanı ile ikinci bir dava açmaya gerek olmaksızın talep sonuçlarını artırma imkanlarına da sahiptir. İdari Yargılama Usulü Kanunu madde 2’de her ne kadar açıkça böyle bir dava yoluna yer verilmemişse de 6459 sayılı Kanun ile İdari Yargılama Usulü Kanunu madde 16/4’te yapılan değişiklikle yürürlüğe konulan tam yargı davalarında miktar artırım düzenlemesi, idari yargıda da zararın bir kısmının dava konusu edilmesi ve sonrasında miktarın artırılmasına imkan sağlamıştır.

Adults in private family law proceedings in Wales: characteristics and vulnerabilities.

ObjectivesPrivate law children cases are disputes, usually between parents after relationship breakdown, about arrangements for a child’s upbringing, such as where they should live and/or who they should see. To inform policy and practice, more information is needed about the families involved, including their characteristics, circumstances and vulnerabilities.
 ApproachThis paper presents findings from research by the Family Justice Data Partnership – a collaboration between Lancaster and Swansea Universities – funded by the Nuffield Family Justice Observatory. Anonymised routinely-collected, individual-level, population-scale family justice data from Cafcass Cymru was linked with hospital and GP records, within the Secure Anonymised Information Linkage (SAIL) Databank for 18,653 adults involved in private law proceedings in Wales between 2014/15 and 2019/20 and a comparison group of 186,470 adults not involved in court proceedings, matched on age, gender, deprivation. The proportion of adults in the two groups with several health-related vulnerabilities recorded was compared.
 ResultsAdults involved in private law proceedings were found to have higher prevalence of mental health problems, substance use, self-harm and exposure to domestic violence and abuse than the matched comparison group. Both men and women involved in private law proceedings were between two and three times as likely to have anxiety and depression than their peers in the comparison group. Almost 1 in 6 (15.3%) cohort women and more than 1 in 10 cohort men (10.7%) had a history of self-harm, again indicating a level of vulnerability more than double that observed in the comparison group. The research also revealed greater overall use of healthcare services by adults in private law proceedings, with the largest differences seen in the need for emergency health care.
 ConclusionThis research has uncovered the heightened needs and vulnerabilities of both women and men involved in private family law applications. The findings have important implications for the family justice system, and for health and other services, and need to be considered in relation to the current programme of reform.

Anxiety and depression among children and young people involved in family justice court proceedings: longitudinal national data linkage study.

Little is known about mental health problems of children and young people (CYP) involved with public and private law family court proceedings, and how these CYP fare compared to those not involved in these significant disruptions to family life. This study examined records of depression/anxiety in CYP involved in public and private law proceedings using linked population-level data across Wales. Retrospective e-cohort study. We calculated the incidence of primary-care-recorded depression/anxiety among CYP involved in these proceedings and in a comparison group, using Poisson regression. Depression/anxiety outcomes following proceedings were evaluated using pairwise Cox regression, with age- and gender-matched controls of CYP who had no involvement with the courts. CYP in the public group had twice the risk of depression (adjusted incidence rate ratio aIRR = 2.2; 95% CI 1.9-2.6) and 20% higher risk of anxiety (aIRR = 1.2; 95% CI 1.0-1.5) relative to the comparison group. The private group had 60% higher risk of depression (aIRR = 1.6; 95% CI 1.4-1.7) and 30% higher risk of anxiety (aIRR = 1.3; 95% CI 1.2-1.4). Following private law proceedings, CYP were more likely to have depression (hazard ratio HR = 1.9; 95% CI 1.7-2.1), and anxiety (HR = 1.4; 95% CI 1.2-1.6) than the control group. Following public proceedings, CYP were more likely to have depression (HR = 2.1; 95% CI 1.7-2.5). Incidence of anxiety or depression following court proceedings was around 4%. Findings highlight the vulnerability of CYP involved in family court proceedings and increased risk of depression and anxiety. Schools, health professionals, social and family support workers have a role to play in identifying needs and ensuring CYP receive appropriate support before, during and after proceedings.

‘Children not trophies’: An ethnographic study of private family law practice in England

The welfare of the child in the context of private family law proceedings is of significant international interest. This paper presents findings from an ethnographic study of private law proceedings in England, which explored legal professionals’ experiences of and practice within space and place. Data are derived from interviews with professionals, and observations from the waiting areas, canteens, interview rooms and offices of lawyers who represent parents in private family law proceedings. The paper focuses on winners and losers in the area of private family law, and the ‘trophy’, the child, who appears to be lost in the battleground of legal proceedings, but remains the ultimate prize. The concept of space is explored before moving to reflect upon the data from the interviews. The themes that emerge from the data are the relationships between the public space of the court and the vulnerability of the parties as they attempt with greater or less ease, to navigate the complexities of this formal and procedurally driven space. This paper explores the idea of the child as the ultimate ‘trophy’ within private law proceedings to consider its significance for family justice practice in England, and to elicit a greater understanding of the importance of space and place in private law proceedings that have remained largely unexplored.

A genealogy of hostility: parental alienation in England and Wales

ABSTRACTThis article explores the emergence and development of parental alienation (PA) in England and Wales. It considers the background into which PA first appeared in private law proceedings concerning children in England and Wales, and examines how it progressed in the case law through the changing political and discursive context of private family law from 2000 to the end of March 2019. A clear pattern emerged of, initially, parental alienation syndrome and subsequently PA being raised in family proceedings and in political and popular arenas in response to concerns about and measures to address domestic abuse. The case law revealed a high incidence of domestic abuse perpetrated by parents (principally fathers) who were claiming that the resident parents (principally mothers) had alienated the children against them, which raises questions about the purpose of PA. More recently, a PA ‘industry’ appears to have amassed comprising experts, therapists and lawyers, advocating transfers of children’s care from ‘alienating’ mothers to non-resident fathers, as well as PA therapy for children and parents. While PA has had a chequered history and is not without its critics, it has become part of the discursive repertoire of current family law, with increasingly harsh consequences for women and children.

Natural Justice at the Boundaries of Public Law

This paper considers the ways in which natural justice arguments have historically been invoked in private law proceedings against private bodies. It first appeared on the UK Constitutional Law Blog, and will serve as the basis of a wider paper assessing the historical use of public law principles in private law proceedings.

Norgrove and after: An overview of the Family Justice Review and the government's response

This article considers the key elements of the Norgrove Review and the Government Response. It focuses on a single family court, public and private law proceedings, shared parenting, child arrangements orders, parenting agreements, Grandparents and divorce.

Representing children's views and best interests in court: an international comparison

This paper provides a comparison of a number of alternative models of international practice in relation to the appointment and organization of guardians ad litem and other children's representatives in child care and family proceedings. The paper notes that, in their attempts to address the need for children to have representation in matters affecting their welfare, English-speaking countries have tended to conflate the two salient Articles of the United Nations Convention on the Rights of the Child, that is, Article 3, which deals with the child's best interests, and Article 12, which deals with their right to express their wishes and feelings. Where systems other than ‘stand alone’ legal representation have been put in place, the child's representative is charged with both assessing their best interests and, often as a secondary duty, communicating their views. The paper concludes that for some groups of children in public or private law proceedings, an advocate (rather than a best interest oriented guardian, and where necessary in addition to a legal representative) may enable better representation of the child in the courts and greater participation by children in legal proceedings, an increased role for children as citizens and a fuller implementation of their rights. Copyright © 2005 John Wiley & Sons, Ltd.

The Silent Majority--The Position of Children Involved in the Divorce and Separation of their Parents

This article reviews the position of children and young people involved in disputes about their residence and contact arrangements following the divorces and separation of their parents. It contrasts their situation with that of children in public law proceedings and critically examines the current arrangements for hearing the voice of the child within the proceedings. The author draws on the experience of the National Youth Advocacy Service (NYAS) in seeking to identify which children and young people need the safeguard of separate representation within private law proceedings.

Delight and Dole: The Children Act 10 Years On

PLENARY ONE Delay and the Challenges of the Children Act Amanda Finlay PLENARY TWO Children's Rights and the Impact of Two International Conventions: The UNCR and the ECHR Jane Fortin Interface of Children Involved in Criminal Matters Vulnerable and a Risk to Others - The Double Challenge Dr Susan Bailey Troubled Children and Criminal Justice His Honour Judge Mark Hedley When Young People Refuse Treatment: Balancing Autonomy and Protection Dr Mike Shaw PLENARY THREE Adoption James Paton A Study of Care Plans and their Implementation and Relevance for Re W and B and Re W (Care Plan) Professor Judith Harwin and Morag Owen PLENARY FOUR Expert Evidence 10 Years after the Implementation of the Children Act 1989: Where are We? The Hon Mr Justice Wall ADSS Position Statement Expert Reporting in Public Law Cases Dilemmas of the Corporate Parent Chris Davies Expert Witnesses Pat Monro The Use of Expert Witnesses Useful or Useless? Jenny Stevenson and Dr Arlene Vetere PLENARY FIVE The Skill of Representing Children at a Time of Chaos Vivienne Reed Children, Safety and Parental Contact in Private Law Proceedings Rukhsana Farooqi Thakrar Speech by Chairman of CAFCASS Anthony P M. Hewson President's Response PLENARY SIX International Adoption Professor Carolyn Hamilton PLENARY SEVEN Feedback from Small Groups and Discussions Resolution on the Adoption and Children Bill PROSPECTIVE The Way Forward The Rt Hon Lady Justice Hale Concluding Comments The Rt Hon Lord Justice Thorpe

Dialogues with Children

The notion of listening to children so that they can participate in decision-making about their everyday lives has become an established principle of child law and policy in England and Wales. That there are fundamental constraints to putting this principle into practice, however, is widely acknowledged, particularly in the context of divorce and parental conflict. This article shows how the operation of the welfare principle in an English context constrains children's participation within private law proceedings. It goes on to explore children's own discourses around the issue of being listened to and reviews current debates about their participation in the light of this evidence. The children's commentaries offer fresh insights into what it means to listen to children, along with some new ways of thinking about young people's citizenship within and outside their families.

Interim Relief in the Public Law Context

The remedial aspects of judicial review illustrate in particularly vivid form the divergent nature of public and private law proceedings. The prerogative orders–mandamus, certiorari and prohibition–are available only via judicial review. Leave is required for judicial review but not for private law actions. By contrast with the private law writ procedure, judicial review must be brought promptly and within three months. In judicial review, a remedy can still be denied to the applicant who establishes a substantive case. As the Law Commission made clear in its Report Administrative Law: Judicial Review and Statutory Appeals, “[j]udicial review often involves values and policy interests, which must be balanced against and may transcend the individual interests, which are normally the subject of litigation between private citizens” (Law Com. No. 226, para. 2.1).

Individual Differences in Judicial Behavior: Personal Characteristics and Private Law Decision-Making

Previous research suggests that differences in judicial decisions stem from differences in personal characteristics of the decision-maker. Dutch private law proceedings permit a research approach in which the judicial decision-making task is simulated by presenting written decisional problems to judges. Judges (N=114) made decisions on the same nine cases and completed questionnaires on role conceptions and personality.Findings suggest that judicial decisions are only moderately influenced by the personal characteristics of the judges. The judges, however, differed considerably in their decisions. Neither the influence of personal characteristics of the judges nor the characteristics of the cases can explain to a substantial extent the differences in the decisions. It was concluded that judicial decisions stem from an interaction of personal and case characteristics.