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A B C D E F G H I J K L M N O P R S T V W Y

Family

Supreme Court delivers another landmark ruling for cohabitees
Thursday 30th August 2018

The Supreme Court has today handed down it’s judgement in McLaughlin for Judicial Review (AP) (Northern Ireland).

Miss McLaughlin was in a cohabiting relationship with her partner Mr Adams for 23 years prior to his death in January 2014. During that time, Miss McLaughlin and Mr Adams had four children together. After the death of Mr Adams, Miss McLaughlin attempted to claim Bereavement Payment and Widowed Parent’s Allowance, but her claims were rejected on the basis that she was not married to Mr Adams.

In England and Wales when one party to a marriage dies and no Will has been made, the other spouse will automatically inherit at least some of their property (if there are children this will be up to £250,000 of assets plus half of any remaining assets, or if there are no children there entire estate). A spouse can also potentially claim any death in service benefits under their pension (when no nomination has been made) and can claim various state benefits such as those mentioned above. In contrast, when one party to a cohabiting couple dies, their claims are much more limited. 

Miss McLaughlin applied for a judicial review of the refusal to make payment to her, which was accepted by the court who declared the initial rejection to be Incompatible with Articles 14 and 8 of the European Convention of Human Rights. The court today said “It is difficult to indeed to see the justification for denying people and their children benefits, or paying them at a lower rate of benefit, simply because the adults are not married to one another. Their needs, and more importantly their children’s needs, are the same…The allowance exists because of the responsibilities of the deceased and the survivor towards their children. Those responsibilities are the same whether or not they are married”

There have been numerous calls for reform to cohabitation law not just in relation to death, but also the position if cohabiting relationships break down. This is on the basis that cohabitees are (and have long been) the fastest growing family type in the UK and there are a growing number of children born to parents who are unmarried and who in turn lack the financial security of children born during a marriage.

This is the third case in 18 months in which a cohabitee has successfully attained rights previously afforded only to spouses on the death of a partner (the cases of Denise Webster and Jakki Smith having similar outcomes – in those cases after long cohabitating relationships they fought for and secured pension survivor benefits and bereavement damages).

Despite there being some progress in case law, for there to be significant change the government will need to make legislative changes. The outcome of this case today places further pressure on the government to reform the law for cohabitees.

For more information on the topic please contact Natalie Hargreaves or a member of our Family team


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The Supreme Court has today handed down the long-awaited judgement in the case of Owens v Owens
Wednesday 25th July 2018

Mr and Mrs Owens married in 1975 and separated in February 2015 making theirs a 40 year relationship. Mrs Owens petitioned for divorce in March 2015 under Section 1(2)(b) Matrimonial Causes Act 1973 on the basis of Mr Owen’s unreasonable behaviour. She gave numerous examples of the alleged behaviour. Mr Owens defended the divorce and the allegations in the petition arguing that they were insufficiently serious to form part of an unreasonable behaviour petition. The Judge agreed with the Husband and dismissed the divorce stating that the allegations were “trivial at best”.

This was a surprising decision as “unreasonable behaviour” in divorce is considered to be a largely subjective fact.  The previous case of Livingstone-Stallard confirmed that it is not a matter for the judge to consider what he / she personally believes to be unreasonable but whether the reasonable man would consider that the particular husband and wife in their own specific circumstances would find the behaviour unreasonable.

Allegations within an unreasonable behaviour petition are therefore very varied in practice and can range from serious to mild. In the absence of adultery, unreasonable behaviour is the only fact that allows parties to divorce straight away.  All of the other facts involve periods of separation.  As couples are unable to make legally binding financial agreements without active divorce proceedings in England and Wales the fact of unreasonable behaviour is heavily relied on.

Applications to defend a divorce are uncommon and generally, subject to the particulars of unreasonable behaviour, the courts will form a view that if one party has gone so far as to petition for a divorce on the basis of unreasonable behaviour the marriage has broken down and they should not be forced to remain within that marriage.

Mrs Owens appealed the decision and the Court of Appeal held that the Judge was correct to dismiss the petition. Sir James Munby who is the most senior Family Judge in England and Wales stated that “it is not enough to be locked in an unhappy marriage”.

The initial dismissal of the petition and the subsequent upholding of that judgement in the Court of Appeal have cast doubt over presumptions long-held by family law practitioners.

This decision has added to the mounting pressure on the Government to reform divorce law and allow for divorces (and consequent financial resolution) without the need for one party to “blame” the other for the breakdown of the marriage; which many say is a principle cause of an amicable separation turning sour.

Mrs Owens three year legal battle to obtain a divorce may not have been necessary if a no-fault divorce was an option. England and Wales is one of the only remaining jurisdictions that does not permit no fault divorce; it has been common practice in China since 1950 and in Australia since 1975 (around the time our current divorce law was introduced). Under existing statute, Mrs Owens’ only option is to wait for five years to divorce Mr Owen’s without his consent.

Today, the Supreme Court “with reluctance” have dismissed Mrs Owens’ appeal. 

They accepted that defended divorces are uncommon and that it is not generally difficult to establish the irretrievably breakdown of a marriage on the basis of behaviour.  They also expressed unease about aspects of the previous judgment finding that the trial judge had not heard enough evidence before rejecting her case.

Nonetheless, they concluded by a majority that she had failed “by a narrow margin” to surmount the high hurdle for intervention required by the Supreme Court and that she must therefore remain married to Mr Owens until 2020 when she can rely on the fact of five years separation.

The Supreme Court concluded by saying the question for Parliament is whether the law remains satisfactory.

For more information on the topic, please contact Helen Marriott or a member of our Family team


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Supreme Court rules heterosexual couple are entitled to civil partnership
Wednesday 27th June 2018

The Supreme Court have today decided that a heterosexual couple have the right to enter into a civil partnership instead of a marriage. The ruling comes after Rebecca Steinfeld and Charles Keidan argued that the current law was discriminatory, on the basis that same-sex couples can decide whether to enter a civil partnership or get married – a choice not available to them.

An important factor for Ms Steinfeld and Mr Keidan was their belief that marriage is an outdated institution associated with the patriarchy. A civil partnership allows the same legal protections and rights as a marriage, but in their eyes does not carry the same negative connotations.

The Court unanimously declared that the current law is incompatible with the European Convention on Human Rights, and specifically Article 14, the prohibition on discrimination, together with Article 8, the right to respect for private life. They pointed to the example that heterosexual couples could miss out on legal benefits if they do not believe in the institution of marriage, and there doesn’t appear to be a legitimate public interest that could justify this scenario being acceptable.

There will now be pressure on the government to update the law to allow civil partnerships to be extended to all couples in line with this judgement. Although there is no legal obligation on the government to do so, today’s decision surely makes that course of action more likely.
 


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Spousal maintenance orders explained: are they a “meal ticket for life” or the road to financial independence?
Friday 22nd June 2018

Spousal maintenance has been the subject of debate – whilst most people can perfectly understand the rationale behind child maintenance, many cannot appreciate why an ex-spouse would have a duty to financially support their former partner – even when that partner may have moved on in to a new relationship.

Whilst all countries have “alimony” laws, the law in England and Wales has traditionally been considered to be particularly generous. The Scottish legal system has a general rule which provides that spousal maintenance shall not last any longer than 3 years post-separation – a similar bill entitled Divorce (Financial Provision) Bill is currently before parliament for consideration and would impose similar restrictions in this country.

Financial provision following divorce is governed by Matrimonial Causes Act 1973 and S.25A provides the court with a duty to consider if it is appropriate to order a “clean break”, severing the parties ties to one another. So why do our courts order spousal maintenance – when is a clean break not appropriate? And what amount will the court order?

Income is treated differently to dividing capital assets, in that the court does not consider that income should be shared equally – spousal maintenance claims are not therefore generated by wants or the desire for income parity. They are generated by needs. Lady Hale (who is one of the most senior judges in England and Wales) stated in a leading case called Miller that spousal maintenance will be ordered to “meet needs which the relationship has generated”. This makes the length of the marriage and the ages of any children relevant – it is hard to see how a short and childless marriage can generate an income need (though it is not impossible).

The typical circumstances that would warrant a spousal maintenance claim are not therefore cases where there is an income disparity alone. They are cases where:

  1. There has been a long marriage and the financially weaker party has not worked during the marriage or has a low income – clearly in those circumstances that parties earning capacity (if they have one) will be very limited -  the court will take a realistic view and is likely to order life-long spousal maintenance (known as a “joint lives” order) as it is necessitated by need;
  2. The financially weaker party is the main carer to young children – in these circumstances it is not realistic to expect that that party will have a significant earning capacity as they will be balancing work and childcare. In this case the court is likely to order spousal maintenance for a term, until the children are slightly older and the financially weaker party is able to return to work.

    In Wright v Wright (2007) the Court of Appeal stated that there would be an expectation that when children attain the age of seven their Mother’s should be considering at least part time work – it may not be that they can earn a significant salary, but they should be making some financial contribution; “she should use her best endeavours to develop an earning capacity that is compatible with the children’s care. It is no good to refer to other Mothers who do not work; they are not relevant to this family”

When it is established that one party has a need for spousal maintenance, then the question arises as to the quantum (amount) and term of that maintenance (how long the maintenance should be paid).

The Law Commission guidelines suggest that the question of how much will depend on the resources available and the marital standard of living; they note that it is very unusual for parties to maintain the marital standard of living when one household is divided in to two but that the reduction should not fall disproportionately on to one party –they further note that this should be balanced with the court’s desire to promote financial independence; it simply may not be appropriate for one party to enjoy the marital standard of living for the parties joint lifetimes unless they can afford to do so from their own resources.

Our system is discretionary and each case has its own facts, making the law appear enigmatic. However, it does seem clear from published judgements that attitudes are changing and maintenance will not arise simply from existence of an income disparity unless needs demand it – there appears to be growing focus within the courts on the principles of achieving financial independence, which have long formed part of statute but have perhaps previously received less focus.

The court would ultimately always prefer to encourage financial independence and impose a clean break where it is possible to do so – and when there is sufficient capital in the case the court will look to “capitalise” one parties maintenance claim by imposing a clean break in exchange for awarding them a higher percentage of the capital.

If you require any advice in relation to spousal maintenance, variation of maintenance orders or any other family law issue then please call 0151 600 3139 to speak to Antonia Williamson, or call 0151 600 3000 and ask to speak to a member of the Family Team.

 


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Myth Buster – “The Court favours women over men"
Wednesday 14th March 2018

Generally speaking, it is understandable why many people have the misconception that the Court will favour wives in divorce and financial remedy proceedings. The belief seems to stem from the fact that there have been a number of substantial divorce settlements reported in the media over recent years in favour of the wife.

Historically, the woman often took the role of the homemaker and child carer and the male was the ‘breadwinner’. These traditional roles of the male and female are significant reasons behind the fact that woman seems to be awarded a “better” settlement on divorce.

That being said, this trend is rapidly adapting as society has developed and it is not uncommon for women now to work and raise a family at the same time.  Despite the evolution of the male / female roles within society, it appears to remain the case that many people still believe that the Court system favours the woman.

The reality is, however, that the starting point for the Court in determining financial matters is the doctrine of equality. There can be a departure from equality if certain factors dictate it.  For example if the woman has  given up a career for the sake of maintaining the home and / or caring for children there may be need to depart from equality.

If the woman has been the primary carer of the children her income may be lower and her mortgage capacity may be lower as a result.  She will therefore need more capital than the husband to rehouse.  However, this is not sexist.  If the Husband is the financially weaker party by virtue of being at home caring for children or indeed for any reason this will apply to them too.

Therefore, it is not that the Court favours women, but that the Court seeks to ensure that the financially weaker spouse receives a settlement that is fair and enables them to receive their fair share of the marital assets and in some instances, especially if their financial needs dictate, they may receive more than half the value of the assets to enable them to, for example, rehouse themselves.

Therefore, despite the fact that it may appear to be the case that during separation proceedings the woman obtains the more favourable outcome, the Court takes the approach that the individual’s needs to be assessed above and beyond all other factors.  Women do often received an enhanced settlement but this usually involves a capitalisation of spousal maintenance, a pension offset or a departure from equality to meet needs.

Also, it is not specific to women but rather applies to the financially weaker party which, traditionally, has been the wife.

If you have any queries in relation to financial settlements on divorce please do not hesitate to contact a member of the family team.


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The "special contribution" argument in divorce
Monday 26th February 2018

There has recently been significant media coverage about the separation of Ant McPartlin from his wife Lisa Armstrong. Ant and Lisa formed their relationship at the age of 19. Now, at the age of 42, he has a reported net-worth of £62million. Lisa is a high earner in her own right, working as a TV makeup artist.

The couple are in the process of getting divorced after an eleven year marriage, which was preceded by 12 years of pre-marriage relationship. The court will consider any period which they spent living together leading up to the marriage, as part of the length of the marriage itself. It therefore seems likely that it will be considered a long marriage.

In cases like this, where the couples respective fortunes have been built up jointly and over the course of the marriage (known as “the marital acquest”), the starting point in divorce will be equality. This is a legal principle stemming from the landmark case of White v White in 2001, which established that both parties to a long marriage would generally be regarded as having made an equal contribution to the marriage – irrespective of the quantum of their actual financial contributions.

It has been widely reported that Lisa is set to “walk away with a £31million pay-out”. However, this will of course firstly depend on what is the true extent of their assets.

It has also been reported that Mr McPartlin may consider running a contributions argument, which is also sometimes referred to as a “genius” argument, in order to reduce Lisa’s 50% claim to their matrimonial assets. This is an argument not uncommon to celebrity high-net worth divorce cases; and was argued by Paul McCartney in his divorce from Heather Mills and by Ryan Giggs in his divorce from Stacey Cooke (both unsuccessfully).

So what is the genius argument?

Two leading cases; White v White in 2001 and Charman v Charman in 2007 firmly established that the circumstances that would result in a departure from equality must be of a “wholly exceptional nature”, so that it would be very obviously inconsistent with the objective of achieving fairness for them to be ignored. Exceptional earnings are a factor pointing away from equality of division only when it would be inequitable to proceed otherwise. Hard work alone, or being in the right place at the right time is not enough. This was reiterated in the case of Cooper-Hohn in 2014.

In Work v Gray (2017) the Husband had generated wealth of £300m in the space of 8 years. Perhaps as an example of the high standard required to prove “genius”, the court in this case did not consider Mr Work as having made any particularly special contribution – they simply deduced that he was very good at his job. His appeal against that decision was dismissed.

Ultimately this is a complex and controversial area of law that is dealt with by the courts on a very fact specific basis. If Ant is to make this claim in his divorce he must establish that his contribution has been exceptional and is unmatched by the contributions made by his wife.


 


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CAFCASS launch scheme to crack down on parental alienation in 2018
Thursday 11th January 2018

The Children and Family Court Advisory and Support Service (CAFCASS) has launched a pilot scheme to tackle parental alienation, which it believes to be present in 11 – 15% of all UK divorces, thus making up 10% of Cafcass’ caseload and affecting roughly 6000 children per year.

Parental alienation has been described by Anthony Douglas, chief executive of Cafcass, as “one parent trying to turn their child in to a child soldier in a battle”; it effectively involves poisoning a child against their parent to the point that the child themselves will refuse contact with that parent. This has been problematic in Children Act cases, where parental alienation has not been identified at the outset and the children’s wishes and feelings are taken in to consideration by the courts when making decisions about parental contact. These difficulties have left the court in a relatively powerless position until now.

In Re A (A Child) (2015) a case was brought to the Court of Appeal concerning a 12 year old boy (known as “B”). The Mother and Father had separated when the B was two years old and the Father initially enjoyed contact with B, with whom he had a strong attachment. The Mother withdrew contact unilaterally and the Father made an application to the courts in 2007, which he then agreed to withdraw on the basis of the stressful impact that the proceedings were having on the Mother. The Father described this as “the most ill-advised decision of his life”.

By the time the Father made the decision to return the matter to court in 2010, the Mother had developed an increasingly negative view of him and B had come to share that view. Over the three years the Mother had been continuously communicating to B that the Father was dangerous.

The assessment of the Father was considerably more positive than that of the Mother; he was described as a “calm, thoughtful and caring man”. He brought his application to the Court of Appeal on the basis that the Mother was implacably hostile; that she had a responsibility to facilitate contact between him and his Son; and that the Court had failed to consider the emotional harm to B attributable to the Mother.

Unfortunately by this stage it was simply too late – B was persistent in his refusal to see his Father and the Court felt it would be harmful to force him to do so. Whilst acknowledging the case to be a tragedy, the Court would not allow the Father’s application.

Parental alienation, previously dismissed as a common product of a failed relationship, has been given increasing precedence. It is an internationally recognised as a form of psychological abuse, is considered a breach of the UN Convention of Rights of a Child, and in some countries it is a criminal offence.

It is against this backdrop that Cafcass have introduced their new scheme, known as the “High Conflict Practice Pathway”, designed to assist with early identification of parental alienation in Children Act cases and to encourage families to work with Cafcass to improve the situation. Cafcass are taking a robust approach and in extreme cases will be recommending that children are removed from the alienating parent and potentially suspending their contact with the children if matters cannot be resolved.

Cafcass also plan to launch the “Positive Parenting Programme” to reduce parental conflict in emotionally charged proceedings and reduce the risk of emotional harm to children by encouraging parents to place themselves in their children’s shoes and understand the effect of their behaviours.

Both programmes have been piloted since late 2017 and the High Conflict Practice Pathway is planned for a national launch in Spring 2018.

If you have any queries in relation to arrangements for children following a separation please do not hesitate to contact a member of the Family Team.


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What’s in a name? – Travelling abroad with a child with a different surname
Thursday 7th September 2017

As the holiday season draws to a close a lot of children will return to school with happy memories of family holidays.  However, for some, travelling abroad with their children can have unexpected complications when passing through border control if the children have a different surname to their own. 

The issue has recently been highlighted by Tulip Siddiq, MP for Hampstead and Kilburn.  On their return from France Mrs Siddiq and her 18 month old daughter, Azalea (who has her father’s surname), were stopped by UK border control officials who questioned why they did not have the same last name.  Mrs Siddiq is married to Azalea’s father but decided to keep her maiden name after marriage.  Officials asked to see documents including marriage certificates and birth certificates, which of course are not documents many people would think to take abroad with them in addition to their passport. 

Mrs Siddiq has described the incident as distressing, not only for her, but also for her daughter.  It was only when her husband joined them that officials allowed them to proceed with their journey.  Mrs Siddiq has called for reform of the regulations so that both parents are named on the child’s passport to prevent this in the future.  (For more information on Mrs Siddiq’s story please see https://www.theguardian.com/uk-news/2017/sep/06/mp-stopped-at-border-over-daughters-name-urges-passports-reform?CMP=fb_gu).  

It is of course important that border control officials check the identity of those travelling with children and their relationship to them, in order to protect children from trafficking, abduction and other crimes.  However, consideration should be given to the documents that parents who do not share their child’s surname may require when travelling. This will be an issue which doesn’t just affect mothers who are married but have chosen to keep their maiden names.  Problems may also arise where parents are unmarried, or where parents are divorced and have either reverted to using their maiden name or have taken a new name on remarriage. 

It is also of note that different border patrol agencies can have different requirements on what documentation should be provided and when.  For example, Mrs Siddiq was stopped by UK border control but not the French authorities.  Family lawyers are often asked to assist with the preparation of documents for travelling abroad, as affidavits and certified documents from the parent with the same surname are required by some countries if that parent is not travelling too. 

Similarly, when children travel abroad it must usually be with the consent of all individuals with parental responsibility.  This means that if a child is going on holiday with their mother alone, then their father’s consent to the travel may be required before they are permitted to travel.  As family lawyers, we are often instructed in relation to obtaining parental consent in writing, in the event that this is asked for when travelling abroad.  

Following separation and divorce it can be more difficult to obtain consent or copy documentation from a non-travelling parent and we would always recommend that this issue is dealt with at the earliest opportunity so that travel is not delayed or cancelled. 

For more information on parental responsibility, changes of name or requirements for travelling abroad with your children please contact Leanne Instrall on 0161 836 8916 or by e-mail to Leanne.Instrall@Brabners.com
 


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Common Divorce Myths
Monday 4th September 2017

“I want a divorce on the ground of irreconcilable differences”

This is a phrase we all see used in magazines, newspapers, and films – which may explain why 85% of the population think this is an available ground for divorce in the UK. It is in fact a ground for divorce in America.

In the UK there is just one ground for divorce - that the marriage has “broken down irretrievably”. This is established by proving one of five facts:

a) The other party’s Adultery
b) The other party’s Unreasonable Behaviour
c) Desertion
d) Two years separation (with the other party’s consent)
e) Five years separation (if the other party does not consent)

“My spouse had an affair so I am taking them to the cleaners” / “I had an affair so I’ll walk away with nothing”

People often find it hard to believe that behaviour within the marriage bears absolutely no relevance to ancillary relief proceedings. When it comes to dividing assets, it does not matter who had an affair or who behaved unreasonably. Financial proceedings can take a long time as it is, and if the court were to wade through accusations about adultery and behaviour then they would drag on endlessly -  the only conduct that is relevant to financial settlement is gross financial misconduct (which is very rare!)

“I deserve more from the divorce, since I was the one who earned it/paid for everything”

It does not matter who was the breadwinner in the relationship is – the court will normally view both parties as having made an equal contribution to the marriage and so the starting point will always be 50/50, irrespective of each parties actual financial contributions. Although there will be various arguments that may be used to justify a departure from an equal division, including the needs of the parties.

“I need a lawyer who is aggressive – not a pushover”

There is a huge misconception that your lawyer should be aggressive. An aggressive approach will not change the outcome of the proceedings; it will simply make things more unpleasant for the parties involved, and will more often than not increase costs unnecessarily.

Your lawyer should be firm and pro-active, but focused on reaching an amicable agreement. This is in your best interests, both emotionally and financially. It is also worthwhile to find a solicitor who is trained in other methods of resolving cases, such as arbitration, mediation or collaborative law.


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Sir James Munby: Provisions for care and support in UK are a “disgrace to any country with pretensions of civilisation”
Wednesday 9th August 2017

Sir James Munby, President of The Family Division in England and Wales, has heavily criticised the state of Mental Health provision in the UK in the case of Re X (A Child) (No 3).

The case involves a girl aged 17 who for the purposes of confidentiality is referred to as “X” and who is currently placed in a secure accommodation unit.

X has serious mental health issues and is described as being “on a suicide mission to a catastrophic level”, having made 102 significant attempts to take her own life during her time at the unit (less than six months). The staff are concerned that they are never more than 24 hours away from a phone call confirming that one of her attempts has been successful. The unit has been assessed as being unsuitable for X on the basis that the care and supervision that X requires is far above and beyond the level of supervision usually required by patients there.

The facilities at the unit are described as not meeting X’s needs – “despite the staffs best efforts they are managing little more than to contain her” - Mr Munby thus ordered on 15th June that there should be urgent enquiries in relation to X’s placement in to a clinical setting, in an adolescent secure unit.

Unfortunately when the matter was next before the court on 3rd August, there had been no replacement centre found for her. Sir James Munby noted that “I could hardly have been clearer in stressing the imperative to find an appropriate placement for her before her release…... for all that has actually been achieved in the last few weeks, I might as well have been talking to myself in the middle of the Sahara”

The only suitable placement that was identified had a six month waiting list for beds. Mr Munby stated that “this lack of proper provision for X – and one fears, too many like her – is an outrage”

X is nursed in her bedroom at the unit, although this bedroom has had to be stripped entirely to make it secure – it consists of simply a mattress on the floor. X has to wear anti-ligature clothing and is supervised at all times. She is totally isolated from all peers and receives no education. Mr Munby stated that X is simply existing as opposed to living. Whilst recognising that these conditions have been imposed in order to preserve her life, Mr Munby could not see that they were compatible with her humanity or dignity or indeed the European Convention of Human Rights.

Mr Munby heavily criticised the situation arguing that “what this case demonstrates, as if demonstration is still required of what is a well-known scandal, is the disgraceful and utterly shaming lack of proper provision in this country of the clinical and support services so desperately needed” and that it is “a disgrace to any country with pretensions to civilisation, compassion and, dare one say it, basic human decency, that a Judge in 2017 should be faced with the problems thrown up by this case”

Mr Munby concluded that “One of the measures of a civilised society is how well it looks after its most vulnerable members of its society….if this is the best we can do for X, and others in similar crisis, what right do we have to call ourselves civilised?.... I feel shame and embarrassment that I can do no more for X…..if we are unable to provide X with the safe placement she so desperately needs, we will all have blood on our hands”

This is not the first occasion that Mr Munby has used his position to raise concerns with the British Care system. The Judgement has been sent to the Home Secretary, Health Secretary, Education Secretary and Justice Secretary although so far no minister has commented.

For more information on the topic, please contact Antonia Williamson or another member of our Family team


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