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Head of Chambers

On the elevation of Michael Berkley to the Circuit Bench, Chambers is delighted that Christopher Naish is to continue his inspiring leadership as sole Head of Chambers.

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Grow Exeter Magazine’s 100 Most Influential Women 2018

Magdalen Chambers are delighted to announce that Lisa Lyons, our Marketing and Administration Clerk has been nominated  in Grow Exeter magazine’s ‘100 Most Influential Women 2018’ in the Greater Exeter area. Lisa was chosen from 500 nominations for influential women from all walks of life.

The successful nominees have been notified and have received an invitation to attend the award ceremony at the Deer Park Country House Hotel. This will be held on the 12th February between 6 and 9pm.

Chambers is immensely proud of Lisa’s wonderful achievement, and offers congratulations to everyone nominated and to the finalists, and wishes all the best of luck on the night.

https://growexeter.co.uk/top-stories/100-influential-women-exeter-2018-nominate/

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The on-going process of reform – Financial Remedies Courts

Although there has been much reform of the processes and procedures in the family justice system in recent years, there is one area in which little has been done and much needs to be done: financial remedies. Some of its failings were exposed by the Law Commission in its 2014 report, ‘Matrimonial Property, Needs and Agreements’, Law Com No 343. They need to be remedied.

https://www.judiciary.gov.uk/wp-content/uploads/2014/08/view-from-the-president-of-family-division-20180123.pdf

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Case law update: Placement with adopted siblings

Last week the Court of Appeal gave judgement in Re B (A child) [2018] EWCA Civ 20 this was an unusual but interesting adoption case where the court had to weigh up the importance of a potential relationship with a full sibling who had already been adopted against placement with a family member.

The proceedings related to a little girl, B, who was born in the spring of 2016. B had an elder full brother, H, who was born in 2015 and was adopted in 2016. The essential issue before the judge was whether B should be placed with H’s adoptive parents or with her father’s cousin.

H’s adoptive parents were not party to the proceedings, the reason for this was as stated by Sir James Munby in Re T (A Child) (Early Permanence Placement) [2015] EWCA Civ 983[2017] 1 FLR 330:

“The care judge is concerned at most with consideration of adoption in principle, not with evaluating the merits of particular proposed adopters. There is no need for the prospective adopters to be joined, for it is the children’s guardian … who has the task, indeed is under the duty, of subjecting the local authority’s care plan to rigorous scrutiny and, where appropriate, criticism.”

In Re B the trial judge considered Re T which she distinguished on the basis that the facts before her were sufficiently different. In Re T the potential adopters had also been the child’s foster carers whereas in the instant case H’s adoptive parents had no pre-existing relationship with B.

Her Honour Judge George, whose decision was upheld on appeal stated that “a degree of comparison between the options before the court is unavoidable in seeking to establish what [B]’s welfare needs are and how they can best be met. That inevitably happens when the court weighs up the pros and cons of each option. However, as I hope this judgement will show, it is the principle of adoption that the court is considering in the particular facts of this case, not choosing the better of two alternative placements.” She went on to say “the court must undertake the necessary balancing exercise, but in the knowledge that the adoption placement whilst still being considered in principle holds [H]” She reminds herself that the court is carrying out a holistic global analysis of the pros and cons or each option.

The fathers appeal was dismissed.

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Joint Head of Chambers, Michael Berkley is appointed as a Circuit Judge

Chambers are delighted to announce the elevation of Michael Berkley to the Circuit Bench. He has been appointed to sit as a Civil Judge based in Salisbury, but will be covering the whole eastern region of the Western Circuit. He will be formally sworn in at a ceremony before the Master of the Rolls at the Royal Courts of Justice on 5th February 2018.

Michael has given his inspiring and unstinting dedication to jointly leading chambers, with Christopher Naish, since the formation of Magdalen in 2013, for which chambers owes a debt of gratitude. Prior to the merger that brought about Magdalen, Michael had established, and headed, Rougemont Chambers from 1997 as the leading Civil set of chambers in Exeter.

His colleagues and clerks – his professional family – congratulate Michael on his fantastic achievement. We are immensely proud and wish him well in his future career, as we are sure do all of his former clients.

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Christmas and New Year Opening Times 2017

Friday, 22 December – 08:30 – 17.30
Monday, 25 December – Closed
Tuesday, 26 December – Closed
Wednesday, 27 December – Closed
Thursday, 28 December – 9.00 – 15.00
Friday, 29 December – 9.00 – 15.00
Monday, 1 January – Closed
Tuesday, 2 January – 08:30 – 18:00

For Emergency Out of Hours contact please call our main telephone number and you will be transferred to our Out of Hours cover.

Members and staff wish you all a very Merry Christmas and a Happy and Prosperous 2018!

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Government announces today that evidence tests are relaxed for domestic violence legal aid

From January domestic violence victims will no longer have to endure harsh evidence tests to qualify for legal aid, the government announced today.

The Ministry of Justice decided in February that it would scrap a five-year time limit for some forms of evidence and broaden the range of documents that can be accepted as evidence. A statutory instrument amending the legal aid regulations will be laid in parliament on Friday.

https://www.lawgazette.co.uk/law/evidence-tests-relaxed-for-domestic-violence-legal-aid/5063974.article

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Unmarried couples win right to claim bereavement damages following landmark ruling 

Unmarried couples are to have the same rights to bereavement damages as married couples following a landmark Court of Appeal ruling.

NHS worker Jakki Smith, 59, brought an appeal after discovering she was not eligible for damages after her partner John Bulloch died in 2011.

http://www.telegraph.co.uk/news/2017/11/28/unmarried-couples-win-right-claim-bereavement-damages-following/

 

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Burden of Proof under the Equality Act 2010: Ayodele v Citylink Limited & Napier [EWCA] Civ 1913 a Return to Orthodoxy after Efobi v Royal Mail Limited.

Further to my article on 9th October 2017 the Court of Appeal has considered the effect of section 136 of the Equality Act 2010 in the case of Ayodele v Citylink Ltd. The point arose as an additional ground of appeal before the Court of Appeal as a consequence of the EAT’s decision in Efobi.
Their Lordships considered not only the well-known, pre-Efobi, domestic law on this point but also the Opinion of Advocate General Mengozzi in CJEU case C-415/10 Galina Meister v Speech Design Carrier Systems GmbH, which supported the view that in EU law the initial burden lies on a claimant and that this maintains a fair balance between the rights of claimants and those of defendants or respondents.
Singh LJ at paragraph 93 of his Judgment in Ayodele said “I can see no reason in fairness why a respondent should have to discharge that burden of proof unless and until the claimant has shown that there is a prima facie case of discrimination which needs to be answered” Singh LJ was reinforced in that view by reason of the Opinion of the Advocate General in Galina Meister. Further comment was made that there was no material before the Court of Appeal that tended to show that there was a mischief that Parliament intended to remedy by the altered wording in Section 136. It was concluded that the change in wording was because the earlier legislation was not entirely clear that what should be considered at the first stage was all the evidence, from whatever source it had come, and not only the evidence adduced by the claimant. This had been clarified by the Court of Appeal in Madarassy. The changing of the wording was a “tidying up” exercise and not intended to change the law in substance. It was concluded that the pre-Efobi decisions of the Court of Appeal remained good law and that the interpretation in Efobi is wrong and should not be followed.
There is, however, an important point still to be drawn from Efobi, namely the clear warning given to Respondents of the possibility that an adverse inference might be drawn if they do not call alleged discriminators, without a good explanation, to give evidence.
It should be noted that the Court of Appeal has not determined whether permission to appeal should be granted in Efobi and as such there may be further developments.