• Helping you to stay up to date in the ever changing world of social care.

Newsletter and Legal update January 2022

Happy new year, we do hope you had a restful break.

How did you spend your break, our lead Training Director, Shefali Shah, used this valuable time to read Lady’s Hale’s memoir of her life in law.

The book starts with a motto chosen by Lady Hale on her appointment to the House of Lords:

“Omnia feminae aequissimae”- Women are equal to everything.

Lady Hale certainly lived up to this moto, her journey in the law is truly inspirational and showed that glass ceilings can be smashed, making landmark rulings in areas such as domestic violence, divorce, mental health and equality.

Lady Hale is known by many social care and health care professionals, for her specialism and leading judgements in family and social welfare law, having delivered judgements in leading case law that has impacted on the law relating to children, young people and vulnerable adults.

Below are listed just a few of Lady Hale’s most important decisions:

  • Re D (Contact: Reasons for Refusal) [1997] 2 FLR 48 – recognised that domestic violence towards a mother can be damaging to children;
  • R (Wilkinson) v Broadmoor Hospital [2002] 1 WLR 419 which held that to impose treatment without consent is a potential invasion of his rights under Article 3 or Article 8 of the European Convention of Human Rights and that a psychiatric patient is entitled to a proper hearing on whether treatment is to be imposed against his will); 
  • R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246 which banned corporal punishment in schools; 
  • R (E) v Governing Body of JFS – Lady Hale was part of a majority holding that the Jewish Free School’s policy of preferring Jewish born students was discriminatory.
  • R (on the application of G) (FC) (Appellant) v London Borough of Southwark (Respondents) [2009] UKHL 26- The key question in this case was what the criteria in Children Act 1989, s 20(1), meant, and how, if at all, the application of the criteria was affected by the other duties of children’s authorities, in particular under s 17 of the 1989 Act. G had demonstrated that he met the criteria for assistance by way of s20 CA and so the Local Authority had therefore to provide assistance by way of s20 CA
  • Cheshire West Case[2014] UKSC 19- This supreme court case provided much needed clarity on the what amounts to a deprivation of liberty. Lady Hale providing the leading judgement famously stated that even if the accommodation is comfortable, if is amounts to a deprivation of liberty then “ a gilded case is still a cage.”

The judgement set out that for a person to be deprived of their liberty they must be subject to both elements of the “acid test”:

1.Is the person subject to continuous supervision and control? And

2.Is the person free to leave

If you are feeling fully rested after the festive break are you ready to be updated on a few interesting legal updates that happened at the end of 2021.

Legal update low down

Liberty Protection Safeguards (LPS)

Many of you will be aware that the Government’s aim was to implement the LPS in April 2022. Unfortunately, the Department of Health and Social Care has announced that the start date is to be delayed and a new date is yet to be announced.  The delay is due to the fact that the public consultation in not ready to be launched which is of course is necessary so to draft the regulations and the code of practice for the Mental Capacity Act and the LPSS.

Transparency in the Family Court

This has been a long-standing agenda which is now been progressed by the current President of the Family Division, Sir Andrew Macfarlane in his report:

https://www.judiciary.uk/wp-content/uploads/2021/10/Confidence-and-Confidentiality-Transparency-in-the-Family-Courts-final.pdf

Confidence and Confidentiality: Transparency in the Family Courts

The President is of the view that to increase transparency there needs to be a shift in culture and process to achieve confidence in the family justice system and maintaining anonymity for families and children. The President intends to lead the process by implementing changes and to commence this process by permitting accredited media representatives, that will include reporters but also legal bloggers who will be to attend hearings. Who will be able to report publicly with the proviso that any reporting must maintain the anonymity of children and families and to keep confidential intimate details of their private lives.

There are of course concerns about the impact of this however although a different from the family court research has shown greater transparency in the Court of Protection has led to the public having a much better understanding of the work it does. One of the other positives as previously identified by the former President, Sir James Munby is that the press can report on the correct facts from the outset

The President is setting up a Transparency Implementation Group to take forward the changes further to consultation.

Remote Hearings

As the pandemic continues and as most people are being urged to work from home, remote hearings continue. HMCTS has conducted its own research and has produced a report. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1040183/Evaluation_of_remote_hearings_v23.pdf

Some of the findings are that:

  • 86% of family court users attended remotely
  • 78% of legal representatives preferred to work from home and 59% said post pandemic they would still prefer to work from home giving the advantages of reduction in travel and waiting times.
  • 58% of Judges were of the view that remote hearings impacted on their health and wellbeing, with increased fatigue, stress, and increased workloads with fewer breaks.
  • Common technical issues identified, and clearly what not to do:
    • when joining hearings, party’s camera or microphone were not set up correctly.
    • Parties were not joining the link 30 minutes prior the hearing, thereby not allowing time for any technical issues could be resolved before the hearing commences.
    • Connection dropping out or freezing of screens
    • inappropriate locations with some parties logging on in parks, or whilst walking on the street, driving, in a public phone box and on a plane.

If you would like to know more about how to prepare for a remote hearing please check out our blog on https://www.kingsleyknight.co.uk/court-hearings-during-covid-19-pandemic-part-2-what-should-i-do/

Coroners Court Awareness Training

We have devised and have been delivering our specialised training Coroner Court

The ethos of the Coroner’s Court process is to put the family at the heart of the process,

despite this the Coroner Court process can feel very unfair for family members. With limited availability of funding for legal representation can result an inequality of arms when faced with NHS trusts, Prison authorities, or the police being fully legally represented and would appear to take the position of defending themselves.

Without effective legal representation, family members can feel lost in the process and become mere observers, when they should be taking an active role. They may not know they have the right to ask questions or even challenging the evidence, so that they can find out how and why their family member died and what lessons can be learned.

By not having the assistance they require, family members often turn to the same social care or health care professionals who were supporting their family members prior to their death for support.  This can be a challenge at times for the social care professionals, who may not fully be familiar with the process themselves and having to support family members struggling with grief.

We offer a virtual training course to support professionals or anyone who is required to attend the Coroner’s Court to become familiar with the process and to provide written and oral evidence confidently.

What the course will cover:

  • Understand the Coroner’s Court process and how it differs from other court process
  • Understand your role, family and interested person’s role within the Inquest process
  • Understand what is required in your written reports
  • Increase your confidence in giving effective evidence at the Coroner’s Court, with our top tips in becoming an impressive witness, including practical tips on how to present, and how to deal with difficult questions.
  • Understand Inquest conclusions, PFD reports, impact of Rule 23 and the role of the jury.
  • Support and resources available for professionals and family members

Who should attend:

  • Social Care professionals
  • Health care professionals
  • Anyone who is required to attend the Coroner’s Court
  • Any charities/organisations or professionals supporting family members

If you are interested in this course or similar training, please contact us on info@kingsleyknight.co.uk and let us know your training requirements.

We do hope you have a smooth transition into new year.

Should you require training on issues related to or that impacts on children and vulnerable adults please do not hesitate to contact us  https://www.kingsleyknight.co.uk/contact-kingsley-knight/ and we will be very pleased to have a no obligation discussion on your training needs.

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