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Huddersfield solicitor wins landmark ruling for Children’s Guardians

Monday, July 4th, 2011

Ridley & Hall Solicitors HuddersfieldLandmark judgement re-asserts the independence of Children’s Guardians as a vital element in protecting children.

In a landmark judgment today in the High Court Sir Nicholas Wall, President of the Family Division, today emphatically underlined the independent status of the Children’s Guardian.

In ringing and powerful words Sir Nicholas stated:  “I yield to no-one in my view that the guardian’s independence needs to be cherished.”

In a ruling that supported the arguments put forward by Nagalro, the professional association for children’s guardians, he told Cafcass that it cannot remove Guardians from cases before the court.   Neither must it substitute its own organisational view for the court-appointed guardian’s view of what will be in the best interest of the child.

The  Background

Nigel Priestley Senior Partner at Ridley and Hall Solicitors Huddersfield who represented Nagalro explained the background.

“A Children’s Guardian had successfully opposed the local authority plan in court for an 18 month old child.

She had supported the placement of a child back with his parents whilst their capacity to care for him was assessed. The Local Authority had wanted the child separated from his parents and put in foster care.

The court acted on the recommendation of the Children’s Guardian.  In a bizarre turn of events a Senior CAFCASS manager received an anonymous email calling on him to look into the guardian’s recommendation.

The issue that arose in the case was the fact that the local authority and Cafcass managers communicated between themselves to covertly engineer the removal of the Children’s Guardian”

He went on: “Nagalro successfully applied to intervene in the case. It argued that Cafcass guidance to its staff was unlawful as it allowed managers to change a guardian’s recommendations where there was disagreement between them.

Children’s Guardians, many of whom are Nagalro members have been put in positions of professional conflict. They risk being in breach of either their organisational duty to Cafcass as their employer or their statutory duty to the court as set out in s41 Children Act 1989.

Sir Nicholas set out what would happen in the event of a disagreement between the manager and the guardian. The President did not support Cafcass’s assertion that the managers view would prevail. The proper and transparent course is for the Cafcass manager to go to court and explain why they have taken a contrary view. It will then be for the court to decide on the basis of all the evidence before it.

He re-iterated how important it is for children that guardians can exercise independent judgment when working with solicitors in the ‘tandem model’ and that this “remains the child’s best protection against poor social work practice”.

Comments on the decision

Commenting on the President’s decision Nigel Priestley said:

“After Baby P there are still large numbers of Care Proceedings being started. Some say there should be even more. It is vital that a Guardian can stand back and question the Local Authority’s plans. There is nothing worse for parents to feel that the Local Authority and the Guardian are hand in glove. This is a landmark decision.

Children’s Guardians should be able to make a tough decision without having to look over their shoulders to see what management might think of their decision. Guardians are under enormous pressure at present. This is decision means that there is one less pressure on them now.

Sir Nicholas called it “shocking” that the parents were kept in ignorance of the discussions. He was particularly critical of the lack of transparency and fairness in the case. He was right to be so critical. Too often parents feel that the case is cut and dried and that they are powerless. This is a clear reminder that there must be openness in all dealings between social services and both the Guardian and Cafcass.”

Mr Priestley paid tribute to counsel, Martha Cover and Deirdre Fottrell who at very short notice assembled the powerful arguments that were so influential in the case.

Ann Haigh, Chair of Nagalro, said today:

“We welcome this judgment and its clear statement of the boundaries between organisational and professional accountability. It is much needed and we are delighted that it fully supports our view that personal responsibility and the professional judgment of skilled and independent practitioners offers the best protection for children.”

“We expect Cafcass to review its organisational policies to take account of this judgement and to ensure that all managers and practitioners fully understand the importance of the professional independence of the Children’s Guardian role and their proper relationship with the court.”

Sir Nicholas’s judgment makes it clear that although Cafcass as an organisation has a role in quality assuring the work that guardians undertake, this must be balanced against the guardian’s independence.

For further information contact Ridley & Hall Solicitors on 01484 538421 or visit www.ridleyandhall.co.uk

Notes:

  1. NAGALRO is the Professional Association for Children’s Guardians, Family Court Advisers and Independent social work practitioners.  The association aims to promote and enhance the quality of practice of those concerned with the independent representation of children’s interests before the courts, throughout England and Wales.
  2. Children’s guardians are appointed in public law proceedings in the family courts i.e. where Local Authority Children’s Services take court action to protect children whom they believe are suffering significant harm within their families, – physical, sexual or emotional abuse. The role developed to give children a voice after the tragedy of Maria Colwell, a seven year old girl whose voice was not heard when the court returned her to mother and step father who murdered her. They are also appointed in adoption proceedings, emergency protection order, and secure accommodation applications.  Family Court Advisers also act in private law cases, reporting to the court on children’s welfare in relation to contact and residence issues. A Guardian can also be appointed for a child in private law proceedings under Rule 9.5 where their welfare requires independent representation.
  3. The NAGALRO website can be found at: www.nagalro.com

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Intestacy rules; out of date?

Thursday, October 14th, 2010

There’s some interesting new research by the National  Centre for Social Research confirming that nearly two thirds of the public do not have a will. In its survey of 1,556 people, only 37% had a will. The Intestacy Rules currently entitle a surviving spouse to inherit most (often all) of the estate if there’s no will. 80% of those surveyed thought that was right. The thought provoking issue  is that those surveyed thought that the same rule should apply to cohabiting couples; more than half of respondents thought a surviving partner should receive at least 50% of the estate.  The Inheritance Act 1925 currently does enable a surviving cohabitee to apply to Court for financial support but that can be stressful and expensive.  It seems that public opinion is now tending towards treating cohabitees in the same way as spouses. It’s an issue that would benefit from public debate. In the meantime, Ridley and Hall’s contentious probate team deals with the disputes that arise when someone dies ; we can help when it’s not possible for families to resolve these issues themselves.

Support the Laura Crane Trust – Help fight cancer in young people

Friday, September 24th, 2010

Cancer is the most common form of non-accidental death in teenagers and young adults in the UK. The Laura Crane Trust is the only UK charity dedicated to funding research specifically into cancers affecting 13-24 year-olds, where cancer can strike in dangerous and difficult forms, often necessitating very harsh regimes of treatment in an effort to save their lives. The trust also funds various measures to improve the lives of these young cancer patients whilst they are undergoing treatment.

Please support The Laura Crane Trust by attending the Annual Circus Ball.

Saturday 9 October 2010, 7pm

Buy your tickets here

Cedar Court Hotel, Bradford

For more information about the Laura Crane Trust, visit http://www.lauracranetrust.org

Same sex couples & disputed Wills

Friday, February 19th, 2010
Sarah Young, Ridley & Hall Solicitors Huddersfield

Disputed Wills & contentious probate specialist - Sarah Young

Sarah Young is a specialist in contentious probate and a Partner at Ridley and Hall solicitors, Huddersfield. Here she talks about how the issues that give rise to disputed wills and contentious probate cases affect same sex couples and civil partnerships.

Peter Ikin was a successful executive in the music industry who died on 12th November 2008. Ikin, 62, was the confidante of stars such as Elton John, Rod Stewart and Billy Joel from his days as a boss with Warner Music International. He owned substantial assets and made a Will in 2002 which left his estate to friends, family members and to 3 Australian charities. In April or May 2008 he formed a close relationship with a much younger man, Alexander Despallieres. Despallieres had allegedly told Ikin that he was an internet billionaire dying from a brain tumour. The couple entered into a civil partnership in October 2008.

After Ikin’s death, Despallieres alleged that his partner had made a Will in his favour in August 2008 (before the civil partnership) – but family members claimed that that Will was a forgery. Despallieres moved into Ikin’s £3m Chelsea home after his partner’s death and emptied £2m from his Channel Island bank accounts.

The August 2008 Will that Despallieres sought to rely on left everything to him and contained a clause that it “shall not be revoked by either subsequent marriage, civil partnership nor adoption”. After a legal battle in 2009, a Judge found that even if the Will were valid it was revoked by the civil partnership despite the clause in the Will – because the clause was not specific enough. It was just a ‘general statement’ that the Will was intended to survive marriage, civil partnership or adoption. It did not comply with a specific clause of the Wills Act 1837 that requires that someone making a Will should, in those circumstances, make it clear from their language that they: -

1. Expected to form a civil partnership with a particular person.
2. Intended that the Will should not be revoked by that civil partnership.

Despallieres was therefore unsuccessful in his claims and Peter Ikin’s estate was distributed under the intestacy rules.

So – a civil partnership (or a marriage) will revoke a previous Will unless it contains a suitable, and very carefully worded clause. What many people are unaware of is that when someone dies – whether or not they have made a Will – financial claims can be brought against their estate in England and Wales under the Inheritance (Provision for Family and Dependents) Act 1975 (the Act). Eligible claimants are limited – usually to close family who were financially dependent in some way on the deceased. Despallieres may have been better off bringing a claim against his late partner’s estate rather than forging another Will.

It may come as a shock to find out that even if you make a Will your wishes may not be carried out; but the aim of the Act is to prevent injustice often to partners who arguably should be no worse off as a result of their partner’s death than they would have been in the event of a divorce/separation. If you are in a same sex relationship it makes a difference if you have entered into a civil partnership. Your partner in that situation has exactly the same entitlement under the Act as a married spouse. This means that if they make a claim under the Act they are entitled to ”reasonable financial provision’ whether or not that provision is required for his or her maintenance. It is up to the Court to decide what is reasonable in each case but one of the factors that is taken into account is the “deemed divorce test” ie what financial provision would have been made for them if the parties had divorced rather than one of them dying.

If you have not entered into a civil partnership then your surviving partner is entitled to a lower standard of financial provision “as would be reasonable in all the circumstances of the case for the Applicant to receive for his maintenance”. This can result in hardship and unfairness to a surviving partner, especially where the couple have simply assumed that the surviving partner will inherit everything. In those situations the surviving partner has to cope with the emotional devastation of the bereavement and at the same time take legal advice – often very quickly because once a Grant of Probate is taken out by an executor (the person who administers the deceased’s estate), in some cases there is a non negotiable 6 month period for making a claim. Any claim after that time may be time barred.
How can you avoid leaving your loved ones with a legal battle after your death?

First of all consult a solicitor and make a Will. That may sound wrongheaded – why make a Will if it can be challenged after your death anyway? The reason is that judges are very reluctant to overturn Wills because, if they are genuine, they are the deceased’s persons last expressed wishes and so should not be lightly overruled.

So if you leave everything to the cat and dog home it’s harder to overturn that than if you simply died without leaving a Will at all; especially if you explain your reasons in the Will or a side letter.

Also if you get good legal advice before making your Will you may be able to phrase it or otherwise dispose of assets in such a way so as to – quite legally – avoid or substantially minimise the risk of any legal claim being brought. You may also be able to reduce your estate’s exposure to Inheritance Tax. The current inheritance tax threshold is £325,000 so your estate will be taxed at 40% of any sum over that amount.

This is why I, advisedly, refer to using a ’solicitor’ rather than a ‘Will writer’. In a recent report in the Law Society Gazette, a published survey revealed that 67% of people think that Will writers are solicitors. They are not. Will writers are unregulated and very often completely unqualified individuals, many of whom prey on the unwary. They may appear cheaper than solicitors but beware – they will often charge hidden fees for storage or reviewing Wills which will in the long term make them far more expensive than a Will prepared by a solicitor who is regulated and expert in this area of law. A final word of warning – if a Will writer prepares a Will negligently, by the time that is apparent they will probably be long gone and will have no insurance, whereas a solicitor will almost certainly be traceable and will have professional indemnity insurance to cover negligence claims.

If you enter into a civil partnership you should both take legal advice about making a Will. Almost certainly any Will made before the civil partnership – unless very carefully drafted – will be revoked by it in exactly the same way as by marriage.

A lot of people think that they don’t need to make a Will and that the Intestacy Rules will make sure that their loved ones are provided for. Sometimes that is true, but not always. Much depends on the value of your estate and whether or not you have children. You should also review your Will at least every five years or so, to review any changes in the law and/or your personal circumstances.

A final point to mention; if you have a property in joint names, are you joint tenants or tenants in common? Did you know that if you (like most people) own your property as joint tenants then on the death of the first joint tenant their share of the property passes automatically to the surviving joint tenant? It does not form part of the deceased’s estate. Some people choose instead to hold property jointly as tenants in common. This means that you can dispose of your share in your property by your Will (or intestacy) i.e. it forms part of your estate on your death.

None of us like to think about our deaths – or consider the fact that our financial circumstances when we die may be very different from what they are now – but if we fail to think and talk and plan for these issues, we could leave our loved ones with a financial crisis as well as their grief when we die.

For more information please contact Sarah Young, specialist in contentious probate, Partner at Ridley and Hall solicitors Queens House, 35 Market St, Huddersfield HD1 2HL tel DD 01484 558838.

Ridley & Hall Solicitors Huddersfield

Solicitors Huddersfield 01484 538421

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