Proceedings In England Research Articles

Increased mortality among mothers involved in family court care proceedings compared with their peers in England

ObjectiveResearch has called for Family Courts (FC) and social care services involved in removing children from parental care to consider and address the health of the mother. ApproachWe linked England FC and healthcare data to compare the 10-year mortality risk and cause of death after a first live birth (FLB) for mothers who were involved or not in FC proceedings in England. Results3,072,946 mothers (15-39 years) with a FLB between 2007 and 2019 were followed for up to 10 years (median:8.7 years, IQR: 5.4-10), during which 33,759 were involved in FC. Ten-year cumulative mortality was higher among the FC mothers (1.7 vs 0.3%) and the age-adjusted mortality rate ratio was 7.8 (95%CI: 7.00-8.6). The majority of maternal deaths in both groups met criteria for avoidable death (FC 82.9% vs no-FC 66.8%). Injury was the leading cause of death (204/420; 48.5%) in mothers involved in FCs and cancer (2,823/6,208; 45.5%) in mothers in the no-FC group. Compared with no-FC mothers, more deaths were related to drug use (35.0% vs 6.0%), suicide (14.5% vs 8.4%) or alcohol (9.8% vs 3.5%). Among mothers involved in FCs, maternal mortality was higher in cases when children were placed into out-of-home care (1.65%, 463/28143), than when placed at home (0.94%, 53/5563) at first FC proceeding. Conclusions and ImplicationsAddressing high rates of avoidable mortality among mothers involved in FCs is important for children and parents and could be monitored using routinely linked healthcare, social care and family court data.

Conditional quashing orders: A missed opportunity for introducing a new relief in judicial review proceedings?

This article discusses the opportunity for the introduction of a new type of relief in judicial review proceedings called conditional quashing orders (CQOs) to mitigate the effect of quashing orders on the timeline and costs of nationally significant infrastructure projects (NSIPs). The article explores the benefits and disbenefits of their introduction as a new standard relief and as a court case management power as two possible alternatives. In so doing, the article examines how CQOs could operate and attempts to draw clear parameters for them to achieve their aim of introducing more judicial flexibility in judicial review proceedings. In framing the debate and attempting to build a theoretical framework for CQOs to function, this article considers developments in other jurisdictions, notably Kenya, to inform the discussion while engaging critically with the interaction of CQOs in both alternatives with the current legislative framework. Altogether, the article defends a thesis whereby while CQOs have obvious advantages offering more possibilities for judicial flexibility and mitigation of the effect of quashing orders (which are disruptive to the timeline and cost of NSIPs), they carry overwhelming inconveniences. These, in turn, do not warrant their introduction into legislation. However, the article demonstrates that the aims underpinning CQOs remain useful as they call for a complete rethink of judicial review proceedings in England and Wales to ensure a better balance of justice or convenience by reinforcing fairness, flexibility, and judicial restraint and cooperation in the determination of cases. In fine, the article makes several proposals to achieve this and transform the current judicial review blueprint, thus providing food for thought for reforming the system and emphasising proportionality.

Цифровизация гражданского судопроизводства Англии

Introduction: England is going through a period of radical reform of the civil justice system. A new landscape of digital dispute resolution is advancing, based on the idea that the transition from ‘paperbased’ resolution of legal disputes in physical courts to an online environment will help meet the dual requirements of expanded access to justice and significantly reduced system costs. As noted by the English authors, now the country has a semi‐digital justice system and hybrid ways of working. Supporters of the reforms define the current system as unstable and consider growing digitalization to be the only realistic solution. Purpose: to form an idea of the digitalization of civil proceedings in England based on analysis of scientific sources and regulations. Methods: empirical methods of comparison, description, interpretation; theoretical methods of formal and dialectical logic; special scientific methods such as legaldogmatic and the method of interpretation of legal norms. Results: the conducted research has shown that a modernization program is currently being implemented in the courts of England and Wales, focused on the transition from traditional ways of working to the use of digital methods. There have been created various pilot schemes aimed at improving access to justice, at facilitating preliminary resolution of disputes and resolution of disputes at early stages, at reducing the number of claims reaching the court, at increasing the economic efficiency of civil proceedings and judicial efficiency. Judicial reform has been carried out by the UK government for more than 25 years. But the civil justice reform program, with its commitment to digitalization and online process, began in earnest in 2014, when the Ministry of Justice announced that Her Majesty's Courts and Tribunals Service (HMCTS) would implement a reform program the central element of which would be the use of information technology, including online processes, to facilitate dispute resolution. The concept of online court was to create a convenient online system for processing simple monetary claims with a value not exceeding 25,000 pounds. Conclusions: in 2023, the following digital technologies were widely used by UK courts: video hearings (at the discretion of the court); creation of electronic packages of court documents (e‐bundles) and electronic filing of court documents; electronic communication between the parties and the court; online portals for processing various forms of claims; creation of an online system of protocols of preliminary actions (Pre Action Protocols), called online PAPs. Currently, various claim portals designed to handle claims of various types are operating or undergoing pilot testing in the country: the Online Civil Monetary Claims (OCMC) portal (processing of claims for a certain amount of money limited to 25,000 pounds); the Damages Claims Portal (DCP) (processing of claims for damages in the district court); Official Injury Claim (OIC) portal (processing of accident injury claims). An important event was the creation of the Online Procedure Rule Committee (OPRC) in accordance with the Judicial Review and Courts Act 2022. This law created the basis for the development of new, simplified Rules for online services in civil, family, and arbitration proceedings. The Recommendations of the UK Jurisdiction Taskforce (UKJT) should also be taken into account with regard to the use of blockchain technologies in legal proceedings and judicial practice on this issue. The final report of the UKJT was published on June 28, 2023. The final position of the UKJT was to support common law as the primary means to be used to resolve claims against cryptocurrencies.

Response to "Reforming the Law of Apologies in Civil Proceedings in England and Wales"

Response to "Reforming the Law of Apologies in Civil Proceedings in England and Wales"

“Catastrophic”: A qualitative exploration of survivors experiences of expert instruction in private law child arrangements proceedings

ABSTRACTThis article explores the lived experiences of female survivors of domestic abuse when an expert had been instructed in private law family court proceedings in England and Wales. It considered survivors’ lived experiences from the moment that an expert was suggested to the expert report outcome. The study found that when the family court has made no findings of domestic abuse the court’s focus shifts from the perpetrator to a survivors’ behaviour. Survivors described that, despite their reservations, they considered the expert assessment to be the last opportunity for a professional to recognise the domestic abuse and change the court’s opinion. Survivors found that their natural brain’s response to trauma, due to abuse, was repackaged and (mis)diagnosed as disordered behaviour. Expert reports recommended psychological treatments that were often conditional to any future changes to child arrangements in their favour. Further, survivors’ lived experiences described how perpetrators were able to harness the legal mechanism of child removal and use it as a form of post-separation coercive control, often supported by the expert. Overall, survivors’ lived experiences raised serious professional and safeguarding concerns, as well as ethical issues about the role and impact of the expert in private law child arrangements proceedings.

Keeping children within the family: Changing patterns in the use of special guardianship orders

Special Guardianship Orders (SGOs) provide family courts with an alternative to adoption, typically through permanent placement within the extended family. Using court administrative data, this study charts the use of SGOs as a way of promoting stability and recovery for these vulnerable children who cannot remain safely with their parents.
 The study cohort is based on administrative population data produced routinely by Cafcass and accessed via the Secure Anonymised Information Linkage (SAIL) Databank at Swansea University. The unit of analysis is children subject to s.31 care and supervision proceedings in England between 2007/08 and 2021/22, providing a retrospective observational window of fifteen years. Descriptive statistics were used to compare SGOs to other permanency final legal orders (placement, child arrangements, supervision and no order), and survival modelling was employed to look at stability over time and return to court. Finally, regional and over time variations in the data were examined.
 The percentage of children placed on a SGO as a proportion of all children subject to s.31 proceedings rose from 12% to 18% between 2011/12 and 2021/22. Over the same period the percentage of children with a placement order that frees the way for adoption fell from 24% to 14%. This shift in pattern was more pronounced than for any other legal order we examined for children unable to remain with birth parents. The highest usage per region was in the North East and London and the lowest was in the Midlands. We estimate that 9% of children on SGOs would return to court within 10 years. Older children (5-17 years old) were more likely to return to court after SGOs than younger children.
 The study showed that SGOs have become a main route out of public care, outstripping the use of placement orders. These findings have major implications for policy and practice. They demonstrate that special guardianship provides a stable and sustainable permanency option for children unable to remain with their birth parents.

The adoption paradox: Exploring the role of ethnicity, deprivation, and co-ethnic density in care proceedings in England

The study objectives were to (1) examine the association between children’s ethnicity and final legal orders at the end of family care proceedings (section 31 of the 1989 Children Act), and (2) test whether residential context, such as co-ethnic density and area-level deprivation, moderates this association.
 Two sources of data were used for this study. The first consisted of records routinely generated by Cafcass (England) and stored in the Secure Anonymised Information Linkage (SAIL) databank, and the second was the 2021 England Census. The focus was on children whose initial care proceedings took place between 2015/2016 and 2020/2021 and concluded with a recorded final legal order outcome (N = 98,161). Three-level logistic regression models were employed to estimate the relationship between children's ethnicity and adoption, along with the potential moderating effects of co-ethnic density and area-level deprivation.
 Children's ethnicity is significantly associated with placement for adoption, with white children being more likely to be subject to placement orders compared to children from all other ethnic groups combined (Asian, black, mixed or multiple, and other ethnic groups). Higher local authority co-ethnic density considerably reduces the likelihood of adoption for children of other ethnicities besides white, but not for white children. Moreover, white children living in the most deprived LSOAs are more likely to be placed for adoption than those residing in the least deprived LSOAs. However, the likelihood of placement for adoption remains consistent across all LSOA deprivation quintiles for children from ethnicities other than white. Local authority-level deprivation does not appear to moderate the relationship between children's ethnicity and adoption.
 This study sheds light on the intricate relationship between ethnicity, residential context, and adoption. While previous research has indicated that white children are more likely to be adopted, the findings enhance our understanding of the underlying mechanisms influencing adoption, paving the way for a more equitable family justice system.

Drawing a veil? Privacy and anonymity in trusts and capacity proceedings

Abstract The open justice principle enshrined 110 years ago as a fundamental right at common law by the House of Lords judgment in Scott v Scott [1913] AC 417 remains as central as ever to civil proceedings in England and Wales. However, its precise ambit and content continue to provoke discussion. Where the court is not adjudicating on rival claims in hostile litigation, but is instead administering the affairs of an individual who lacks capacity or a trust, or an estate, this causes particular difficulty. To what extent, if any, does the open justice principle apply to such proceedings? This article will examine how the courts—not only in England and Wales but also by way of comparison in offshore jurisdictions—have answered this question in recent years.

Hearing Children’s Objections in Hague Child Abduction Proceedings in England and Wales, Australia, and the USA

In this article we compare how children’s objections to being returned to their country of origin are treated in Hague child abduction matters in three different international jurisdictions: England and Wales, Australia, and the United States. We examine the relevance of children’s views for the purposes of the ‘gateway’ stage of the relevant exception to mandatory return, and how children’s objections have been approached in legislation, case law, and scholarly commentary. We critique each jurisdiction’s approach against the objectives of the Hague Convention and the Convention on the Rights of the Child. We discuss how aspects such as the methods by which children are heard can make a difference to experiences for children and make recommendations to promote greater certainty and consistency in how children’s objections are heard and considered across jurisdictions.

ON SOME THEORETICAL AND LEGAL ASPECTS OF DISCLOSURE OF DOCUMENTS IN CIVIL PROCEEDINGS IN ENGLAND AND KAZAKHSTAN

The article deals with the institution of disclosure of documents in civil proceedings in England and its borrowing into domestic civil proceedings. Disclosure of documents is a distinctive feature of civil proceedings in common law countries, its existence in the legal systems of civil law countries is the result of borrowing. From this perspective, the effectiveness of introducing disclosure of documents into civil proceedings in the Republic of Kazakhstan is of interest. The author cites the results of a sociological survey among civil litigators, the results of which demonstrate an incomplete awareness of the essence and meaning of documents disclosure procedures in civil proceedings. The purpose of the research is to determine the essence of documents disclosure, with a demonstration of its effectiveness and potential, by comparing disclosure in English and Kazakhstan law. The author attempts to highlight theoretical aspects of English documents disclosure with a focus on the main objectives and role in civil proceedings. Particular attention is paid to the legal regulation of documents disclosure in England, including objects, subjects, limits of disclosure, as well as liability for non-compliance with disclosure rules. Drawing a parallel between the legal regulation of disclosure in England and the existing legal regulation of disclosure in civil proceedings in Kazakhstan, the author demonstrates the existence of gaps in the rules of the Code of Civil Procedure of the Republic of Kazakhstan, the elimination of which can contribute to the effectiveness of documents disclosure. As a solution of problematic issues it is suggested to introduce amendments into the norms of the Civil Procedure Code of the Republic of Kazakhstan, as well as recommend to issue a normative resolution of the Supreme Court of the Republic of Kazakhstan in order to establish a unified procedure for disclosure of documents.

‘When they were taken it is like grieving’: Understanding and responding to the emotional impact of repeat care proceedings on fathers

AbstractThere is growing recognition, in the UK and internationally, of the huge costs of recurrent appearances of parents in local authority care proceedings. This paper contributes to pressing policy and practice concerns to reduce recurrence. It presents qualitative longitudinal data from the first study of fathers' experiences of recurrent care proceedings in England. Demonstrating the emotional impact of repeat proceedings and successive loss of children on fathers, in terms of grief, loss and shame, we highlight the trauma and abuse in their developmental histories. We consider complex connections between anger and shame for these fathers, including within the arena of family justice. With the use of literature on complex trauma, shame and parental disengagement, we explore ideas for re‐framing fathers', and professionals', resistance to engagement and for better understanding fathers' intense emotions. We suggest that the link between shame and complex trauma and the value of shame reducing, dignity promoting practice in response provide a valuable way forward for working with fathers. As is recognized to be the case for mothers, without holistic, empathic interventions to address the vulnerabilities of such fathers, the risks for children, mothers and fathers are unlikely to reduce.

Area‐deprivation, social care spending and the rates of children in care proceedings in local authorities in England

AbstractThis paper examined relationships between area‐level deprivation, local authorities' social care expenditure and the rates of children entering care proceedings in England using a novel data linkage of de‐identified records provided by the Children and Family Court Advisory Service (Cafcass). Using structural equation modelling, the authors found strong positive relationships between socioeconomic area deprivation and high rates of children undergoing care proceedings in England between 2015 and 2019. Preventative social care expenditure is associated with lower child rates when adjusting for deprivation. Our findings suggest that deprived and underfunded local authorities respond to an increased need by prioritizing care arrangements.

Natural language processing to identify case factors in child protection court proceedings

Social work case files hold rich detail about the lives and needs of vulnerable groups. Traditional case-reading studies to gain generalisable knowledge are resource-intensive, however, and sample sizes thereby limited. The advent of ‘big data’ technology, and vast repositories of centrally stored electronic records offer social work researchers novel alternatives, including data linkage and predictive risk modelling using administrative data. Free-text documents, however – including assessments, reports, and case chronologies – remain a largely untapped resource. This paper describes how 5000 social work court statements held by the Child and Family Court Advisory Support Service in England (Cafcass) were analysed using natural language processing (NLP) based on simple rules and mathematical principles. Thirteen factors relating to harm and risk to children involved in care proceedings in England were identified by automated computer techniques, and almost 90% agreement with professional readers achieved when the factors were clear-cut. The study represents an innovative approach for social work research on complex social problems. In conclusion, the paper discusses learning points; practical implications; future research avenues; and the technical and ethical challenges of NLP.

Discretion to exclude improperly obtained evidence in civil proceedings in England and Wales

AbstractExclusion of improperly obtained evidence is often discussed in relation to criminal proceedings, but not civil proceedings, where concerns about wrongdoing of state actors and deprivation of liberty are not usually present. It is sometimes assumed that judges in civil proceedings in England and Wales had no discretion to exclude relevant and reliable evidence based on how it was obtained (as a distinct concern from exclusion of evidence of little probative value) prior to the enactment of the Civil Procedure Rules 1998. This paper seeks to demonstrate that this is wrong, arguing that a number of sources of power to exclude evidence on the basis of how that evidence was obtained have arisen in England and Wales, and that these are not attributable to the Civil Procedure Rules. There is a discretion which enables exclusion of evidence where this is ‘in the interests of justice’, and a discretion to do with the administration of justice. It may be possible to break these down further, to concerns over abuse of the court's own procedures, and executive illegality. Analysing the decisions leading to these developments reveals the importance of human rights concerns to recognition of exclusionary discretion in civil proceedings, and for informing the content of the discretion/s.

Domestic abuse and the provision of advocacy services: mapping support for victims in family proceedings in England and Wales

ABSTRACT The role that domestic abuse services play in supporting victims through the family courts is under documented in domestic abuse literature, save for a recent enquiry conducted by SafeLives which was published in June 2021. The key contribution of that report was in providing quantitative insights into the extent of support available for victims in family court proceedings. This article seeks to build on the work of SafeLives by presenting empirical insights from a separate study in which 29 domestic abuse specialists and legal professionals either completed an online questionnaire, participated in a semi-structured interview, or engaged in both forms of participation. Whilst there is some overlap in the remit of this study and the SafeLives’ study, there are also important methodological differences which impact upon the respective findings, not least that this study has a greater qualitative focus and therefore provides richer insights. The conclusions are timely in light of the Home Office announcement that £81 million is being made available to recruit 700 Independent Domestic and/or Sexual Violence Advisers, and the introduction of Domestic Abuse Protection Orders under the Domestic Abuse Act 2021, which may see non-legally qualified specialists take a greater role in securing family court protection.

Removal at birth and its challenges for midwifery care

In England, care proceedings refer to the process whereby the family court decides to remove a child from its parents against their wish, due to a heightened risk of significant harm. There has been a worrying increase of the number of babies that are removed shortly after birth due to care proceedings in England. The removal of a newborn baby from its parents often occurs while the mother is still recovering in hospital and is a deeply distressing, intrusive and emotionally impactful event, both for parents as well as for midwives involved in their care.Although the number of removals of newborn has risen, increasing support for those involved has not followed the same pace. These women are particularly vulnerable after the removal of a child but there is a lack of evidence and guidance to improve the experiences and the perinatal outcomes of these mothers and their infants. At a healthcare professional level, the impact of care proceedings and removals at birth on the midwifery workforce cannot be underestimated and has been described as one of the most challenging aspects of contemporary midwifery practice. In order to improve the care and outcomes of this under-researched and often stigmatized group of mothers, midwives need to have access to adequate training and supervision. Against the current challenges within UK maternity services, this is of the utmost importance to prevent further burnout among midwives.

Corruption in international commercial arbitration—Domino effect in the energy industry, developing countries, and impact of English public policy

Abstract Corruption has relentlessly posed a major challenge to investors especially in developing countries. However, less attention has been focused on such developing countries from the standpoint of individuals who are indirectly affected by corrupt practices. The relationship between international commercial arbitration, the role of domestic courts and the enforcement of obligations has come under more scrutiny with large awards. Successful parties bring many award enforcement proceedings in England because of the invaluable assistance which English courts provide. Sometimes, there are allegations of corruption with respect to these awards that parties seek to enforce. In this context, English court decisions have significant implications for many parties around the world. However, the traditional narrow interpretation of public policy has come under increasing strain. This article examines how English courts have navigated the matrix of fraud, corruption and public policy-overlapping areas which parties exploit in international commercial arbitration. There is a major argument in favour of striking a balance between various institutional, governmental and people’s interests in dealing with difficult cases.

Английская модель исполнительного производства

The article is devoted to the enforcement proceedings in England. The author examines the specific characters of the system of compulsory execution of judicial acts in civil cases in England, together with the measures of compulsory execution provided by the English procedural legislation and the procedure for their application. Analyzing foreign legislation, the author concludes that in England there is a mixed decentralized judicial enforcement system. Also, the author identifies a big importance of the recoverer in enforcement proceedings in England. Consequently, the role of the enforcement agent in England is reduced to the implementation of the recoverer’s will by order of the court.

The law enabling sanctioned persons to move litigations to Russia: background and reasons

On 8th June 2020 Vladimir Putin signed into law a new bill amending Russian Commercial Code (RCC) introducing provisions that enable sanctioned persons to sue in Russian commercial courts their foreign counterparts irrespective of jurisdiction clause within the contract signed or international treaty. The main sponsor has given his name to the new Law, which is already known as Lugovoy Law. The sense of the Parliament was that to provide Russian sanctioned persons and their affiliates (both domestic and foreign) with extra support vis-à-vis ongoing and forthcoming litigations abroad. As of now, the RCC is supplemented by sections 248.1 and 248.2 and the commercial courts shall have exclusive jurisdiction over disputes involving persons that are subject to restrictive measures. The Law neither list countries and jurisdictions that shall impose sanctions on the Russian plaintiffs, nor specify type of restrictive measures. For instance, the Russian company sanctioned solely by Ukraine may prevent LCIA arbitration or High Court proceedings in England at the suit of its British opponent. In doing so, the Russian sanctioned Plaintiff is required adducing evidence to show deprivation from right to an effective remedy and to a fair trial abroad. Pursuant to the Lugovoy Law, the Plaintiff could be either an individual or a legal entity including foreign ones and be subject of restrictive measures imposed by any foreign country, union of states or by a body of certain interstate community. The Plaintiff’s home commercial court shall have inherent jurisdiction to entertain cases arising out of the new Lugovoy Law. Meanwhile section 248.2 of RCC enables sanctioned persons to seek injunctive relief precluding foreign opponents either commencing or continuing court proceedings in foreign fora. It is a kind of ex parte anti-suit injunction previously unknown to the Russian legal order. The sanctioned person may invoke 248.2 relief once mailed by opponent’s pre-trial letter. In support of the anti-suit injunction the Lugovoy Law allows sanctioned persons asking the court to order for security for costs. However, the amount sought shall not exceed the sum at stake in the main proceedings. Both orders made under the Lugovoy Law may be challenged on appeal at the Circuit Commercial court within one month. At the outcome, the protectionist logic of the legislature made foreign non-residents extraterritorially amenable to the jurisdiction of Russian commercial courts irrespective their personal law. This might provoke competition between jurisdictions and the emergence of two judicial acts on a dispute between the same persons on the same subject and grounds. If the major actors of the Russian economy decide to recourse to the provisions of the new law in disputes that have nothing to do with sanctions that may entail international tensions. The real purpose of the Lugovoy law is to create an extra tool to protect sanctioned persons and their interests. The opponents of those persons designated under some sanctions program shall not be able to recognise and enforce on the territory of Russia a judgment or arbitral award that in some extent appears to disadvantage Russian sanctioned persons. The author was followed by the objective to discover background and reasons behind the Lugovoy Law, as well as to attempt establishing its beneficiaries. Examining court proceedings versus Russian sanctioned persons abroad that have been commenced or disposed of within a month prior Andrei Lugovoy introduced his bill, it were found situations the Lugovoy Law would like to prevent and persons it tries to protect beforehand. In addition to this, the research focused on cases in Russian commercial courts wherein the Plaintiffs were trying to persuade the Commercial courts to apply the principles of Lugovoy bill before it has become law.

Parental Non-Engagement within Child Protection Services—How Can Understandings of Complex Trauma and Epistemic Trust Help?

Building on the findings from the national study of mothers in recurrent care proceedings in England, this paper proposes that the concepts of complex trauma and epistemic trust may help explain parents’ difficulties in engaging with child protection services. With the aim of advancing theoretical knowledge, qualitative data drawn from interviews with 72 women who have experienced repeat care proceedings are revisited, with a focus on women’s developmental histories and accounts of engagement with professionals, to probe the issue of service engagement. The article starts with a succinct review of the literature on parental non-engagement in child protection, highlighting strengths and potential limitations of current knowledge. This is followed by an introduction to the theoretical concepts of complex trauma and epistemic trust, outlining how these concepts provide an alternative framing of the reasons why parents may resist, or are reluctant to engage with, professionals. Drawing on women’s first-person accounts, we argue that high levels of maltreatment and adversity in women’s own childhoods shape adult relationships, particularly in relation to vulnerability to harm in adult lives but also mistrust of professional help. Extracts from women’s first-person accounts, chosen for their typicality against the core themes derived from the data, indicate that acts of resistance or rejection of professional help can be seen as adaptive—given women’s childhoods and relationship histories. The authors conclude that parents’ social histories need to be afforded far closer attention in child protection practice, if preventative services are to reach those with histories of developmental trauma.