JOURNAL OF SOCIAL WELFARE AND FAMILY LAW最新文献

{"title":"The art of balancing in leave applications for revocation of placement orders for adoption","authors":"M. Tan","doi":"10.1080/09649069.2022.2102761","DOIUrl":"https://doi.org/10.1080/09649069.2022.2102761","url":null,"abstract":"What should the approach of the courts be in leave applications for revocation of placement orders for adoption? On the one hand, adopting a generous approach to giving leave leads to procedural delays that may lower the chances of a successful placement for the child (Doughty et al. 2019, p. 5). On the other hand, adopting a stringent approach interferes with the parent’s right to challenge a placement order and runs afoul of the adage that ‘justice must not be compromised in favour of speed’ (Gupta and Lloyd-Jones 2016, p. 546). In light of this, the recent Court of Appeal decision in Re D (Leave to Apply to Revoke Placement Orders) [2022] EWCA Civ 299 is significant as it provides legal food for thought on the approach that courts should adopt in striking a balance between the child’s welfare and the parent’s right in such applications. Re D concerned two children, aged 6.5 and 4.5, whose mother consumed alcohol excessively. In January 2019, the children were returned to the mother’s care after being removed under interim care orders. However, after the mother tested positive for chronic alcohol use and was found sitting on a park bench while heavily intoxicated, the local authority applied for a care order again in February 2020. In February 2021, the district judge made placement orders that authorised the local authority to place the children for adoption. The mother applied under s 24 of the Adoption and Children Act 2002 for leave to apply to revoke the district judge’s placement orders on the ground that there had been a change in circumstances since the placement orders were made. In January 2022, a recorder refused this application, applying the two-stage test of (i) whether there had been a sufficient change of circumstances; and (ii) if so, whether in all the circumstances leave should be given to the mother. With respect to (i), the recorder concluded that there had not been a sufficient change of circumstances as the evidence demonstrated ‘largely a repetition of what ha[d] happened previously’ (para 24). In particular, there was no change from the district judge’s findings in February 2021 that ‘the weight of evidence [was] that [the mother] will return to using alcohol, particularly when not under scrutiny and when subject to stress’ (para 24). With respect to (ii), the recorder concluded that leave should not be given to the mother as her application did not have a real prospect of success, referring again to the risk of relapse (para 25). As regards the children’s welfare, the recorder noted that it was the second time that the children were in the local","PeriodicalId":45633,"journal":{"name":"JOURNAL OF SOCIAL WELFARE AND FAMILY LAW","volume":"44 1","pages":"418 - 420"},"PeriodicalIF":1.5,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44700958","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A detrimental decision on ownership of the family home?","authors":"B. Sloan","doi":"10.1080/09649069.2022.2102767","DOIUrl":"https://doi.org/10.1080/09649069.2022.2102767","url":null,"abstract":"In Hudson v Hathway [2022] EWHC 631 (QB), Kerr J potentially made it easier for a cohabiting partner to claim a share greater than 50% in a jointly owned home. He held that in ‘joint names’ cases where there is no express declaration of trust but there is (at least) an express agreement about beneficial ownership such a partner need not prove that she acted to her detriment in reliance on a common intention to alter the initial presumption of joint beneficial ownership recognised by Stack v Dowden [2007] UKHL 17 and Jones v Kernott [2011] UKSC 53. The decision, however, will excite considerable doctrinal controversy. Mr Hudson and Ms Hathway became a couple in 1990 and went on to have two sons. They bought Picnic House in 2007, and both became registered proprietors but without an express declaration of trust. They never married, and Mr Hudson left the home in 2009 having formed a relationship with another woman. Ms Hathway and both sons remained living at Picnic House. Between 2007 and 2015, the mortgage on the property was paid from Mr Hudson and Ms Hathway’s joint account, albeit that in practice he contributed more because of a higher salary. The parties’ prospects of selling the property were severely blighted by an oil spill from a neighbouring property in 2011, whose consequences took years to resolve. Over 20 months, the parties discussed financial arrangements over email. In August 2013, Ms Hathway accepted an arrangement whereby Mr Hudson retained beneficial ownership of some shares and a pension, while she would have the equity in Picnic House, its contents, savings and income from endowments. She committed to readying the house for sale as soon as the oil spill issue was resolved. By mid 2014 Mr Hudson was becoming impatient with the lack of progress and referred to the time that had passed since the parties ‘reached a deal’. He stopped contributing to the mortgage in January 2015, and Ms Hathway assumed sole responsibility for it. It was not until October 2019 that Mr Hudson sought an order for sale of Picnic House under the Trusts of Land and Appointment of Trustees Act 1996, with equal division of the proceeds. Ms Hathway agreed to sale but argued that she was entitled to all of the sale proceeds on the basis of a common intention on which she had detrimentally relied. At first instance, Judge Ralton found a clear agreement that Ms Hathway was beneficially entitled to all of the equity in Picnic House. He analysed it in the context of a constructive trust: the possibility that an email exchange might satisfy section 53(1)(b) of the Law of Property Act 1925 and thus evidence an enforceable express trust by analogy with Neocleus v Rees [2019] EWHC 2462 (Ch) was not apparently considered. He","PeriodicalId":45633,"journal":{"name":"JOURNAL OF SOCIAL WELFARE AND FAMILY LAW","volume":"44 1","pages":"421 - 423"},"PeriodicalIF":1.5,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42066831","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Fifty years of the Divorce Reform Act 1969","authors":"G. Douglas","doi":"10.5040/9781509947911","DOIUrl":"https://doi.org/10.5040/9781509947911","url":null,"abstract":"","PeriodicalId":45633,"journal":{"name":"JOURNAL OF SOCIAL WELFARE AND FAMILY LAW","volume":"44 1","pages":"424 - 428"},"PeriodicalIF":1.5,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46376304","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Domestic abuse and the provision of advocacy services: mapping support for victims in family proceedings in England and Wales","authors":"A. Speed","doi":"10.1080/09649069.2022.2126605","DOIUrl":"https://doi.org/10.1080/09649069.2022.2126605","url":null,"abstract":"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.","PeriodicalId":45633,"journal":{"name":"JOURNAL OF SOCIAL WELFARE AND FAMILY LAW","volume":"44 1","pages":"347 - 368"},"PeriodicalIF":1.5,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43042247","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Virtue ethics and the United Kingdom (UK) Vaccine Damage Payment Scheme (VDPS)","authors":"David I. Benbow","doi":"10.1080/09649069.2022.2102759","DOIUrl":"https://doi.org/10.1080/09649069.2022.2102759","url":null,"abstract":"ABSTRACT I contend that virtue ethics provides the best ethical justification for vaccination programmes, and associated payment schemes for vaccine damaged individuals (which have been adopted in twenty-four countries and one province). Virtue ethics justifies vaccination programmes, as they contribute to the common good, and associated payment schemes, as they demonstrate compassion, justice and prudence in response to virtuous vaccination decisions by citizens. I also argue that the virtues of maturity and prudence justify voluntary vaccinations. I utilise several virtues to analyse, and suggest reforms to, the United Kingdom’s (UK) Vaccine Damage Payment Scheme (VDPS). I also compare the UK VDPS with the schemes that have been adopted in other states, in particular the Vaccine Injury Compensation Programme (VICP) which has been adopted within the United States (US).","PeriodicalId":45633,"journal":{"name":"JOURNAL OF SOCIAL WELFARE AND FAMILY LAW","volume":"44 1","pages":"391 - 410"},"PeriodicalIF":1.5,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46787133","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"‘Someone who’s there for you … even in your darkest days’: an evaluation of a psychotherapeutic counselling service for birth relatives of adopted children","authors":"Hannah Wright, H. Morgan, Caoimhe Forbes, Lizette Nolte","doi":"10.1080/09649069.2022.2102762","DOIUrl":"https://doi.org/10.1080/09649069.2022.2102762","url":null,"abstract":"ABSTRACT Birth relatives of adopted children in the UK are entitled to independent support during and after adoption, but types of support vary and there is little evidence of what works. This mixed-methods study is an evaluation of a psychotherapeutic counselling service for birth relatives operating across five areas of England. Case records of 304 birth relatives referred over a two-year period were examined retrospectively. Service user questionnaires and interviews with five service users and five staff members were analysed. The birth relatives had histories of abuse and trauma (59%), mental health difficulties (36%) and learning disabilities (26%). Engagement varied from 29% to 62% in different areas; they were more likely to attend in the later stages of the adoption process, if they self-referred, and if the service model offered counselling close to home and without strict limits on the number of sessions. Birth relatives described: Building a special relationship, experiencing a ‘release’; making sense of what happened to my children; being able to make changes; and putting myself back together. This evaluation shows that birth relatives can engage with psychotherapeutic counselling if the time is right and if services are sufficiently flexible, trauma-informed and tailored to their needs.","PeriodicalId":45633,"journal":{"name":"JOURNAL OF SOCIAL WELFARE AND FAMILY LAW","volume":"44 1","pages":"283 - 305"},"PeriodicalIF":1.5,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42359070","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Revisiting fact-finding in child arrangement cases where there are allegations of domestic abuse","authors":"Mandy Burton","doi":"10.1080/09649069.2022.2102766","DOIUrl":"https://doi.org/10.1080/09649069.2022.2102766","url":null,"abstract":"ABSTRACT This case note considers the appellate court’s guidance on fact-finding in child arrangement cases where there are allegations of domestic abuse in light of an earlier appellate decision on how to approach allegations of ‘coercive control’ which may, or may not, include physical or sexual abuse. On the particular facts, allegations of sexual abuse, which at the original fact finding hearing were upheld on the ‘balance of probabilities’, were overturned on appeal. The appellate court were not convinced that there was sufficient evidence of rape, or of a broader pattern of coercive control. Nevertheless, they confirmed the importance of looking for a ‘pattern’ of behaviour rather than focusing on specific incidents. The judgment is significant because it highlights the policy of trying to avoid litigation, even where there are allegations of domestic abuse. The alternative of mediation, incentivised with public funding, which not available for legal advice and representation in many instances, is strongly promoted. Undoubtedly, this may be because of the flaws of the adversarial approach, one of which may be unfounded allegations of ‘parental alienation’ to counter allegations of domestic abuse. However, mediation is not a panacea and holds its own dangers in domestic abuse cases, and these are not addressed in the judgment. The new pilots of an alternative ‘investigative’ approach to child arrangement cases, perhaps hold greater promise of a breakthrough in an area which continues to present significant problems for the legal system and risk of harm for children and ‘protective’ non-abusive parents.","PeriodicalId":45633,"journal":{"name":"JOURNAL OF SOCIAL WELFARE AND FAMILY LAW","volume":"44 1","pages":"414 - 417"},"PeriodicalIF":1.5,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44084186","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Benefit complaints: a critical analysis","authors":"Robert Thomas","doi":"10.1080/09649069.2022.2067681","DOIUrl":"https://doi.org/10.1080/09649069.2022.2067681","url":null,"abstract":"ABSTRACT Benefit complaints are an important area of administrative justice. Drawing upon available data and information, this article critically analyses the benefit complaints system, which is administered by the Department for Work and Pensions (DWP). It finds a significant decline in the volume of benefit complaints, a lack trust in the complaints process, and deep concerns about the quality of complaint-handling. The article also examines how complaints can be escalated, the DWP’s reaction to complaints and its response to the deaths and suicides scandal, in particular the creation of the new Serious Case Panel. The decline in the number of complaints and poor-quality complaint-handling have coincided with austerity policies. Consideration is given to proposals to improve the handling of complaints. However, the core underlying issues concern institutional culture and the social and political demands for political change.","PeriodicalId":45633,"journal":{"name":"JOURNAL OF SOCIAL WELFARE AND FAMILY LAW","volume":"44 1","pages":"258 - 279"},"PeriodicalIF":1.5,"publicationDate":"2022-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48954195","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"‘Legacy benefits’ and the Universal Credit uplift: justified discrimination in the COVID-19 social security response","authors":"Jed Meers","doi":"10.1080/09649069.2022.2067653","DOIUrl":"https://doi.org/10.1080/09649069.2022.2067653","url":null,"abstract":"As the social security system creaked under the weight of the COVID-19 pandemic in 2020, a key dividing line emerged in the Secretary of State for Work & Pensions’ response. Characterised by Harris et al. (2020) as the ‘two-tier claimant hierarchy’, emergency increases in social security provision as the pandemic hit were targeted at those who had lost full-time work because of the pandemic, not those already in receipt of working-age benefits. Nowhere is this more apparent than in the ‘£20 uplift’ in Universal Credit (UC). In April 2020, the Government temporarily increased the ‘standard allowance’ in UC – the only benefit those newly out of work can claim – by £1,040 per year. However, they did not increase the ‘personal allowance’ in any so-called legacy benefits: payments such as Jobseekers Allowance, Employment and Support Allowance, Income Support and Working Tax Credit, which will eventually be replaced by UC. Although new claims for these legacy benefits are no longer possible, around 1.8 million people were claiming these payments when the pandemic began and, as a result, did not receive the uplift. The judgement in R (On the Application Of) T & Ors v Secretary of State for Work And Pensions [2022] EWHC 351 (Admin) interrogates the rationale for this ‘two-tier claimant hierarchy’ (Harris et al. 2020). The five claimants in this case were all in receipt of a legacy benefit and argued that the failure to uplift their payments was unlawfully discriminatory under Article 14 ECHR (prohibition of discrimination), taken with either Article 8 (the right to respect for the home) or A1P1 (the right to property). As the Secretary of State conceded that social security provision falls squarely under A1P1 – and neither side argued it would make any difference to the remaining issues whether A1P1 or Article 8 was the engaged right (para. 17) – the focus turned to whether there was discrimination against the claimants and, if so, if it could be justified. The first issue raises a significant question: can claimants in receipt of one social security payment (here, legacy benefits) be considered in a sufficiently analogous position to recipients of another (here, UC)? The Secretary of State argued that two separate benefits could not be compared in this way and, moreover, only one element of these particular benefits is relevant (i.e. the ‘standard allowance’ in UC and the ‘personal allowance’ in legacy benefits). It was not possible therefore, they argued, to allege discrimination between persons entitled to different benefits. The court dismissed these arguments, underscoring that the positions of the claimants and their comparator need","PeriodicalId":45633,"journal":{"name":"JOURNAL OF SOCIAL WELFARE AND FAMILY LAW","volume":"44 1","pages":"245 - 247"},"PeriodicalIF":1.5,"publicationDate":"2022-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45443954","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"No right to have rights: citizenship fees and judicial deference in PRCBC","authors":"Timothy Jacob-Owens","doi":"10.1080/09649069.2022.2067654","DOIUrl":"https://doi.org/10.1080/09649069.2022.2067654","url":null,"abstract":"In The Origins of Totalitarianism, Hannah Arendt ([1951] 1968, p. 177) famously characterised the right to citizenship as ‘the right to have rights’. Decades later, that view was endorsed by the Court of Appeal, which declared that ‘the right to nationality is an important and weighty right . . . properly described as the right to have other rights, such as the right to reside in the country of residence and to consular protection and so on’ (R (Pham) v SSHD [2018] EWCA Civ 2064 (para. 49)). In a similar vein, Lady Hale had earlier identified the ‘many benefits to being a British citizen’ as including ‘the right to vote, the right to live and to work here without needing permission to do so, and everything that comes along with those rights’ (R (Johnson) v Secretary of State for the Home Department [2016] UKSC 56 (para. 2)). More recently, however, the existence of a ‘right to have rights’ in the UK has been undermined by the Supreme Court decision in R (O (a minor) and The Project for the Registration of Children as British Citizens (PRCBC)) v Secretary of State for the Home Department [2022] UKSC 3 concerning the fees charged to children applying to acquire British citizenship by registration. The case was brought on behalf of O, a child holding Nigerian citizenship, who was born in the UK in 2007 and had lived there ever since. On this basis, she was eligible to register as a British citizen under Section 1(4) of the British Nationality Act 1981. However, while her family had been able to raise the funds to cover the administrative cost of the procedure (a little under £400), they could not afford the full fee, then set at £973 (now £1,012). The lower courts had found that, in setting the fees at this level, the Secretary of State had failed to discharge her duty under Section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children in the UK, but rejected the argument that the fees regime per se was ultra vires (R (PRCBC) v Secretary of State for the Home Department [2019] EWHC 3536 (Admin); R (PRCBC) v Secretary of State for the Home Department [2021] EWCA Civ 193). The latter was the sole ground of challenge to be appealed to the Supreme Court, which likewise found the fee regime to be intra vires, despite acknowledging that it is ‘designed to produce a substantial surplus’ (para. 3) and that ‘for many young people and their families the current level of fees is unaffordable’ (para. 5). In this brief comment, I wish to highlight the court’s restrictive conception of British citizenship rights and its deferent approach to executive discretion in this domain.","PeriodicalId":45633,"journal":{"name":"JOURNAL OF SOCIAL WELFARE AND FAMILY LAW","volume":"44 1","pages":"248 - 250"},"PeriodicalIF":1.5,"publicationDate":"2022-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41701180","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}