Friday, 17 February 2012
Sunday, 20 July 2008
At common law, a child is legitimate when born during the lawful marriage of his parents. A child that is born to a married woman is presumed to be the child of her husband. Both parents have parental responsibility for the child. There is a presumption that the husband (“H”) is also the father of the child. What if, however, the child is fathered by (“F”) a lover or boyfriend? Who has parental responsibility then?
Tuesday, 26 February 2008
What is acceptable evidence of pregnancy?
The employee must produce medical evidence of the date the baby/babies is due.
Twin and triplet mothers are unfortunately discriminated against as their pregnancies hardly ever proceed to the 40 weeks and 37 weeks is the normal gestation for twins, 35 for triplets. I am afraid you have to settle for a singleton EWC (see below) or if you book an elective caesarian this could stand as a EWC.
This will normally be on a Maternity Certificate MAT B1, which shows the date the baby is due.
The MAT B1 is given to the employee by the doctor or midwife. The date given on the MAT B1 can not be changed. Only in exceptional cases, a doctor or midwife who has given a fresh examination would issue a new MATB1. Also insure that your doctor knows, what you work as and what your work environment is, as a risk assessment has to be carried out in light of what is upon your certificate.
In cases where a MATB1 is lost or mislaid a replacement can be issued and clearly marked “duplicate”.
It cannot be issued before the start of the 20th week before the EWC, (that is the expected week of confinement for the Victorians amongst us) (before September 2001, this was the 14th week). (So please IGNORE any health professional that issues you later than twenty weeks citing the fact that you can legally still have an abortion.)
The date of issue is the date it was signed by the doctor or midwife.
The employer may be able to calculate what SMP is due before they receive medical evidence but they must not pay SMP until acceptable medical evidence is received. Although a birth certificate is acceptable as proof that a baby has been born, the employer still needs evidence of the date the baby was due, in order to check that the employee satisfies the continuous employment rule and to calculate the AWE.
Sunday, 24 February 2008
Pensioner Parenting, Kinship Care and Special Guardianship.
SOPHIA CANNON, Barrister, Tooks Court Chambers,
Grandparents have no legal presumptions in law to care or to have contact with their grandchildren. In a previous article,
The Children Act 1989 at its heart has the parent family and from that parental rights and responsibility. Recent statutory amendments in the Children and Adoption Act 2002 have recognised that parental care can be delivered by non-parents just as effectively or in some cases, better then that what would have been delivered by the parents themselves.
It is to the extent that new forms of parenting have come into existence, some of which recognised in law, namely: special guardianship, kinship care and the colloquial term of “pensioner parenting”.
The idea that cross-generational and intergenerational parenting is becoming more common sings from the facts. One in five children is looked after someone who is their parents’ parent: pensioner parenting. Yet their position is not either formally recognised or rewarded. What has happened to reflect this shift in society on legal frameworks to buttress these relationships?
Usually there is no court order to recognise or regulate the situation; equally, there is not any remuneration. Pensioner parents generally take the strain: without question. If there is an ongoing court care case or one to be commenced, what right does any grandparent have to interfere notwithstanding the fact that they naturally may be left to care? Equally, if the issue is contact with a much-loved grandchild, what rights does the grandparent have at all?
What are the grandparents’ new rights to have their grandchild living with them emotionally safely and financially securely? Here follows a legal guide to the new case law, the new statutes that have insured that in name alone, there are four new “rights” for this group of carers, their solicitors, and equally highlighting the local authority’s duties.
To assist the non-legal litigant in person grandparent: A right to be Heard, Assessed, Recompensed and for a Timetable.
Before the survey of these new rights, what makes special guardianship different from an adoption order or a residence order or long-term fostering under a care order?
The key difference is that Special Guardianship Orders are the cream of all three traditional orders. Those who become special guardians’ (“Specials”) have a new ripe legislative tree to pick rights from and in theory; the Act is plump with services attuned to the needs of the children who they look after.
As with adoption orders, the natural parents’ right to exercise their parental responsibility is altered. Unlike adoption, however, parental responsibility is not removed but it is curtailed by the special guardian. Again, as in adoption, the right of the Special to change the name of the child (section 14B(2)) is clear but it is not absolute and is subject to the sanction of the court, L (A Child) (2007) Times, April 11, 2007.
Like residence orders, specials can have a contact order made in favour of the natural parents. (Section 14 B (1) of the 1989 Act) The beneficiaries are the child whose parents who have been sidelined but not totally displaced by the making of the special guardianship order, and the parents themselves who would, under a traditional adoption order had their rights extinguished and their contact limited.
As in long-term fostering, if necessary, the special guardianship order is seen as a placement. This “residential placement” under a special guardianship order is assessed. Firstly, the assessment is for the needs of the child, secondly, for the delivery of services and thirdly for the means of the carer. The child’s needs in conjunction with the carers’ resources are globally reviewed and then supported by the local authority with finance, services until the child’s majority.
Thursday, 18 October 2007
Increasing number of children and young people in the UK are groomed for sexual exploitation by pimps and traffickers. Once groomed they are given drugs, raped, prostituted, battered and subjected to horrific violence and abuse. The process of sexual exploitation involves many different elements of crime which comes to the attention of agencies under different headings, such as children who are missing from home, truanting school, using drugs, prostituted, abducted, raped or murdered.
Lack of recognition of this complex hidden process as one crime, prevents understanding the true scale of the problem across the UK. A way of tackling this problem would be to have specific statutory targets for the police and local safeguarding children boards to ensure the implementation of guidance on safeguarding sexually exploited children.
This online petition http://www.PetitionOnline.com/PTONE/petition.html calls upon the UK Government to take necessary action, both nationally and in each local authority, to ensure: - the practical IMPLEMENTATION of relevant guidance and legislation - its MONITORING
- publicly available REPORTS on progress
This petition was sent to me with some laudable aims and indeed, the Children Act 2004 was created to ensure that local governmental agencies, police, schools, social landlords and primary health care trusts communicate effectively. One hopes that the in the aftermath of the Climbe and Bichard inquirys that proper statistics are kept to ensure that progresssion of the statute is actually seen on the ground.
Friday, 5 October 2007
I was reminded constantly that you are not an actor playing a lawyer but informing the public about the law as a lawyer. Accordingly, it is your experience and personality that is what the public want to see. There is a role to play for the television lawyer however. Half of it is to demystify the profession; the other half is to demystify the law for the audience at home. Family law in particular normally operates behind closed doors so that no one can be told the facts of the case. This adds to the mystification. Inroads have been made, and it is hoped that this will lead to the ability of people to take their own lessons from child law.
How it started
This unusual career started as an approach from a researcher who saw me forcefully advising a client during a High Court case. The young researcher was investigating the clamour for openness in family courts, the rise in ‘families at war’ and campaigning based upon gender lines, rights for fathers, rights for mothers and--often sidelined though--the rights or the former rights for children. I was not blissfully thinking about my Bar career. I was advising a client who had lost his child through the criminal intervention of his erstwhile partner. He was behaving terribly, but with reason. It is a problem, thankfully now being addressed with extensive renovations, due to the lack of proper privacy at the Victorian Royal Courts of Justice--advice, in the most private of cases, has to delivered in public corridors. The researcher stated that I had a down-to-earth manner that would be ideal for television. I took the card but offered her a traditional barrister to undertake the role. She returned a year later stating that traditional barristers are part of the problem of mystifying the profession. This time I relented.
The other issue for the television I found is the didactic use of the law. Major paradigm shifts in human behaviour are often facilitated by the legislature and enforced by the judiciary. Chastising one's wife was once acceptable and legal, but now domestic violence is illegal and objectionable. As a lawyer, how the law applies in the home or upon the sofa, is what the ordinary bloke wants to know, in a manner which they can understand and apply.
Court vs. sofa TV
My specialism of family law is at place with sofa television in the mornings. The process of live television is surprisingly similar to the court arena. I am certain that most judges would not mind being compared to a sofa chat show host. However your function is to inform them of the situation, in a fluid, lucid manner, with reference to the facts and the people involved, and as quickly and succinctly as possible. In court there is your client, on television the audience. The medium of the camera is different to your tribunal. The raised eyebrow is the feedback for an unattractive submission. Your postbag is the equivalent and due to the Internet, is instantaneous. The researchers field the calls and inform you generally about the nature of the question or the problem. Then it is up to you. There is the idea that in court you are intimate with your tribunal. Contrast that with the glare of the world when on live television. Your malapropisms, grammatical errors are captured, beamed out and recorded forever on live television; you remain grateful for a High Court judge's dressing down with your sympathetic colleagues as audience.
The problem arises however with the onset of technology is that members of the public confuse your role. Once I appeared on television in the morning and in court in the afternoon; the client was amazed to the point of speechlessness. I remind them of the Bar Council guidelines that television is entertainment and that his case is the real thing. Some members of the public have recourse to ‘Googling’ you and calling the clerks to continue the debate in chambers. The client always comes first, however, and the Bar Council are helpful to reiterate the principle to those who have media careers what you say to your client and what you say to the audience.
As a barrister, in my opinion you cannot sympathise but you must empathise in order to best represent and advocate for your client. Barristers address audiences of one client and change their language accordingly because they can see how the client is reacting.
It is very different to explain to a camera--I receive a post-bag with comments--heartfelt comments that the viewer thought that they themselves were going through this alone.
Being a real barrister
From playing the Archangel Gabriel in a nativity play, I have acted as an advisor for the BBC, ITV and Channel Four, often uncredited. I can say with gratitude to the Bar Vocational Course, some years later, that simple tasks in advocacy, presentation and projection in the bowels of the School of Law were very useful to the television. You become aware that as a lawyer other professionals, also require demystification of the professions. The small questions such as, ‘Are you a real barrister?’ in response to the removal of wigs and gowns are often asked by the researchers and the viewers.
I note that part of the argument for the retention of wigs and gowns is the element of protection for the Bar from the public. The funniest thing was being recognised in Sainsbury’s. Another justification is that the older barristers look younger and the younger older. I recall part of my post-bag devoted to my appearance, my clothes, and my make up. Therefore, in Sainsbury’s, in tracksuit bottoms, my checkout girl recognised me. She gleefully, told the queue and stated that I looked ‘younger’ and ‘rougher’ but sounded posh. Humiliation apart, I recalled that from that I had people asking the most basic of questions relating to the law and the process. This led to my blog (The Paramount Principle) and my own personal openness to the Bar. There are dangerous downsides though that remind you of the necessity for the lack of direct access to the Bar, that wigs and gowns no longer protect you in the twenty-first century.
Tuesday, 22 May 2007
for assistance regarding Special Guardianship Orders under section 14 (A) of the Children Act 1989 ("the Act") from solicitors, local authorities and litigants in person. I am sure, however, that the Regulations must be on the government website.
I have decided therefore, to post three mini- checklists, all looking at the Act from their perspectives.
The Solicitors' Checklist:
- The Regulations
- The Report
- The Remuneration
- The Responsibility
The first thing I would state is that the each and every solicitor should have regard to the Special Guardianship Regulations.
This is secondary legislation which is plump with duties, responsibilities and the services that the local authority are statutorily responsible for. I have an electronic copy which I now take to court as the Regulations are omitted from the standard practice handbooks. (There is a helpful, 12 point Ariel font laden discussion before the heavy, 8 point, Times New Roman statute which is a must.)
The Regulations are ripe with local authority responsibility for the provision of services, including, for example, the provision of respite care for the special guardian ("specials").
Regulation 3(3), for example, requires that, if respite is provided and the care consists of the provision of accommodation, this must be accommodation provided by or on behalf of a local authority under section 23 of the Act (accommodation of looked after children) or by a voluntary organisation under section 59 of the Act. Therefore any arrangements by a local authority for respite care must involve the child being looked after for the duration of the period of respite care. This requires that appropriate safeguards are in place during the respite care and that any foster parent providing respite care has been approved under the Fostering Services Regulations 2002.
For example, this can be used for those grandparent specials who require a holiday without their grandchildren but cannot send them back to their parents!
What tends to happen however, is this. There are already care proceedings. No-one has sought to invite the court, under section 14 (9) of its own motion to order a report. There is a brinkmanship between the local authority and a potential special guardian as will the special apply and will the local authority report.
I would advise that all solicitors should invite the court's own discretion to be exercised and save the court fee. The invitation to the court can be dealt with administratively, by consent, or at the next hearing.
Section 14 (A)(9) The court may itself ask a local authority to conduct such an investigation and prepare such a report, and the local authority must do so.
There is a third way however, where a person intends to apply for a special guardianship order they must give three months written notice to the local authority. It is more likely that before the client has attended for consultation, there will be have been a form of notice given. Again, I will discuss this fully from the foster parents'/relatives' perspective.
But as a solicitor, how do you identify the notice?
Sometimes the notice is explicit, a letter asking for the order for example. There are however unclear requests. I have seen a letter for permission to adopt. Another was a note asking for "keeping the child until grown". As these implicit notices were not sent to the right department, or even recorded the local authority did not start the report.
I will discuss this from the perspective of the local authorities social worker later.
Upon receipt of written notice the local authority is required to investigate and prepare a report on the applicant’s suitability to be a special guardian, on matters prescribed in the Schedule and on any other matter the local authority considers relevant. This is how a report can be prepared before coming to court reducing costs and time.
The local authority often complain of report fatigue. Sometimes the information is in a care plan, looking at the child's future, other information is in an assessment of the relative under a Regulation 38 report (foster care assessment).
Case law suggests that the Special Guardianship report is crucial however, as the focus is services, needs of the child, the services to meet those needs and who is responsible for its execution. The focus is entirely different.
The matters specified in the Schedule are the matters prescribed for the purposes of section
14A(8)(b) of the Act (matters to be dealt with in report for the court). It is regulation 21 which clearly states what is in the report.
The recent case of Re S no 2 9th February 2007 states that the court must have a report before it, before it can make an order.
The main complaint from solicitors is that although it is perfectly clear to a local authority that a Special Guardianship Order is
"on the cards", some of the the unspoken elements are there namely:
There is a relative or foster carer, with whom the children were placed for over a year, and that more likely than not, the precipitating incident was care proceedings or the relative is party to the proceedings and the parenting has been ruled out. Other elements are the children are unlikely to be adopted due to age and their own knowledge of their situation. These elements are actually part of the rubric of the Act and the rational behind Special Guardianship Orders, a new legislative option for providing permanence short of adoption.
These elements demonstrate an internal checklist which I will discuss fully for the potential relatives.
There are two parts for this section. Which local authority is responsible and who should start the process for special guardianship application. I will/have discuss/discussed this fully in the Report section.
It is clear however, that the local authority must be identified immediately. More likely than not, the children moved/ will move from London Borough X to Metropolitan Borough Y to County Council Z. All solicitors must identify the originating local authority and the receiving local authority.
It is crucial to the stability, security and certainty of the placement to have continuity for the child and family in the early stages of the currency of the order. Regulation 5 provides that the assessment and provision of services for the child, the special and any children of the special all remain the responsibility of the local authority where the child was last looked after for three years from the date of the order. This rule applies wherever the family live during this period.
Therefore as a solicitor, if something has gone wrong under the order, then the residence of the placement may not be where the responsible local authority is.
If there are any other important factors solicitors should consider, I shall add them in time.