An interesting article for New Law Journal jointly written by Kate Harrington with Charles Auld
On 26 September the Supreme Court gave judgement In the matter of D (A Child)  UKSC 42. The case considers the scope of parental responsibility to consent to the living arrangements for children which would otherwise amount to a deprivation of liberty.
By way of background, D was born in 1999. He was diagnosed with attention deficit hyperactivity disorder, Asperger’s syndrome and Tourette’s syndrome, and has a mild learning disability. When he was 14 he was admitted to a hospital providing mental health services, for assessment and treatment. He lived in the hospital grounds and attended a school which was integral to the unit. The external door was locked and D was accompanied whenever he left the site. The hospital trust applied to the High Court for a declaration that it was lawful for the trust to deprive D of his liberty in this way. The judge, Mr Justice Keehan, held that D was so deprived but that it was a proper exercise of parental responsibility to consent to his constant supervision and control while he was under 16.
By then, with his parents’ agreement, and with Birmingham City Council (‘the Council’) accommodating him under s 20 Children Act 1989, D had been discharged from hospital to a residential placement, where he was similarly under constant supervision and not allowed to leave the premises except for a planned activity. On his 16th birthday proceedings were issued in the Court of Protection for a declaration that the consent of D’s parents meant that he was not deprived of his liberty at the placement. Keehan J held that his parents could no longer consent to what would otherwise be a deprivation of liberty once D had reached 16, and that the provisions of the Mental Capacity Act 2005 (‘MCA’) now applied. He authorised the placement, and a subsequent transfer to another similar placement, as being in D’s best interests. When D reached the age of 18 his deprivation of liberty could be authorised under the deprivation of liberty safeguards in the MCA.
The Council appeal to the Court of Appeal on the ground that parents could consent to what would otherwise be a deprivation of liberty of a 16 or 17-year-old child who lacked the capacity to decide for himself, and the MCA had no bearing on this. The Official Solicitor on behalf of D then appealed that decision. The Supreme Court by a majority of 3 to 2 allowed the appeal.
Lady Hale who gave the lead judgement set out that the issue turns on the inter-relationship between the concept of parental responsibility and the obligation of the State to protect the human rights of children under the European Convention on Human Rights.
Parental responsibility being defined in the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property” (section 3(1)). “By law” obviously refers to the common law, but also includes those statutory provisions which give rights etc to parents, such as the Marriage Act 1949, which gives them the right to withhold consent to the marriage of a 16 or 17-year-old child (section 3).
She sets out that historically, parental rights under domestic common law were never absolute and became increasingly subject to the overriding consideration of the child’s own welfare. Quoting Lord Denning MR, In re Agar-Ellis (No 2) (1883) 24 Ch D 317, at 326:
“… the legal right of a parent to the custody of a child … is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.”
She then considered the issue of ‘Gillick competence’ (Gillick v West Norfolk and Wisbech AHA  1 AC 112). A case about whether it was lawful to give contraceptive advice and treatment to a child under 16 without her parent’s consent if she herself was capable of giving that consent. In that case the House of Lords concluded the earlier “age of discretion” cases had established the principle that children could achieve the capacity to make their own decisions before the age of majority. It was no longer, if it ever had been, correct to fix that at any particular age, rather than by reference to the capacity of the child in question.
Lady Hale commented that the MCA does not override other common law and statutory provisions relating to 16 and 17-year-old children, but it does indicate an appreciation of the different needs of this age group. She preferred to express her view on this issue by reference to the ECHR commenting; Article 5 ECHR protects children who lack the capacity to make decisions for themselves from being arbitrarily deprived of their liberty. Clearly the degree of supervision to which D was subject at the placements was not normal for a child of 16 or 17. D’s living arrangements had to be compared with those of children of the same age without disabilities, and the fact that they were made in his best interests did not mean he was not deprived of his liberty. Parental consent could not substitute for the subjective requirement under article 5 for valid consent to the deprivation.
She considered that the crux of the matter was whether the restrictions fall within normal parental control for a child of this age or do they not? If they do, they will not fall within the scope of article 5; but if they go beyond the normal parental control, article 5 will apply.
She concluded that Human rights are about the relationship between private persons and the state, and D’s deprivation of liberty in the placements was attributable to the state. There is no scope for the operation of parental responsibility to authorise what would otherwise be a violation of a fundamental human right of a child.
In her judgement, Lady Black considered that the Gillick case is not directly relevant to the issue before the court. It had to do with medical treatment and not with deprivation of liberty. It was concerned with whether a child might acquire the capacity, and the right, to make such decisions for herself before she reached the common law age of discretion, not with whether parental authority endured beyond that age if the child lacked the capacity to decide for herself. She was however careful to add “I do not intend in any way to water down the important changes brought about by Gillick or to alter the way in which it has been applied in many spheres of family law.”
Lady Black held however that as a matter of common law, parental responsibility for a child of 16 or 17 does not extend to authorising a confinement of the child in circumstances amounting to a deprivation of liberty.
Recent amendments to Family Procedure Rules 2010 Practice Direction 28A (PD28A) have helped clarify the Court’s approach to costs in financial remedy proceedings where one party has failed to engage reasonably in negotiations.
The relevant parts of Rule 28.3 have not changed, it is still the case that:
• The general rule in financial remedy proceedings is that the Court will not make an order for one party to pay the costs of another party (r28.3(5))
• The Court may make a costs order where it considers it appropriate to do so because of the conduct of a party in relation to the proceedings (r28.3(6))
• In deciding what order (if any) to make in respect of costs the court must have regard to the list of criteria in r28.3(7) including any open offers to settle.
Previously PD28A did not offer any further assistance to the Judge to decide what weight to give to the fact that open offers had or had not been made when assessing the ‘conduct’ of a party for the purposes of r28.3(6).
The Practice Direction has been amended as of 27th May 2019 to give greater guidance. It now states at para 4.4 that when considering a party’s litigation conduct:
“The Court will take a broad view of conduct for the purposes of this rule and will generally conclude that to refuse openly to negotiate reasonably and responsibly will amount to conduct in respect of which the Court will consider making an order for costs. This includes in a ‘needs’ case where the applicant litigates unreasonably resulting in the costs incurred by each party becoming disproportionate to the award made by the Court. Where an order for costs is made at an interim stage the Court will not usually allow any resulting liability to be reckoned as a debt in the computation of the assets.”
This amendment stops a long way short of the civil procedure style costs consequences where a failure to ‘beat’ an offer made by the other party will frequently mean paying a proportion of the other party’s costs. However it does emphasise that where a party fails to make reasonable open offers to settle they will be at risk of a costs order against them. There is specific encouragement to ensure that ‘needs’ cases are conducted reasonably and proportionately. The steer from the Practice Direction is clear, where limited resources are available to house the parties etc these resources should not be eaten up in legal costs caused by the unreasonable litigation stance of one party and unreasonable litigants even in ‘needs’ cases are at risk of costs orders.
It remains to be seen how the Court will approach such matters but this amendment makes it much clearer to parties that a failure to negotiate reasonably opens them up to adverse costs consequences.
The Family Procedure Rule Committee has also opened up consultation on the question of the treatment of Calderbank (without prejudice save as to costs) offers when determining issues relating to costs. The consultation ends on 31st October 2019 and can be found at:
On 15 July 2019 the Lord Chancellor announced a new discount rate of -0.25 for personal injury claims.
After many years of the discount rate remaining at 2.5, in 2017 the rate was changed to -0.75. This resulted in some considerable debate followed by a call for evidence from the public as to what the new rate should be.
The new rate of -0.25 will apply from 5 August 2019 and will be of essential importance to anyone preparing a schedule of loss in a personal injury claim.
Carol Mashembo has written an article for the Family Law week website in conjunction with Dr David Pitcher, CAFCASS titled ‘Consent Orders: Triumph or Disaster? The article follows a hugely successful multi-disciplinary seminar which gathered professionals involved in all aspects of family proceedings to share ideas and experiences of the issue of consent in private law proceedings and to inform future best practice.
The article can be downloaded from http://www.familylawweek.co.uk/site.aspx?i=ed192142
Retired District Judge, Associate at Magdalen Chambers, Exeter and Member of their Financial Resolution Consultancy
In his final announcement, the recently retired President of the Family Division of the High Court, Sir James Munby, referred to a development which is playing an increasingly significant role in financial disputes in family cases. This is the increase in the use and effectiveness of the process known either as early neutral evaluation or private financial dispute resolution hearings (private FDR’s). For the purposes of this piece, the latter description is used.
What is a private FDR?
Sir James said:
‘A private FDR is a simple concept. The parties pay for a financial remedy specialist to act as a private FDR judge. That person may be a solicitor, barrister or retired judge. The private FDR takes place at a time convenient to the parties, usually in solicitors’ offices or barristers’ chambers, and a full day is normally set aside to maximise the prospects of settlement. It usually replaces the in-court FDR.’
The timing of a private FDR
The President continued his remarks by mentioning the inter-relationship between the formal court process and a private FDR:
‘Usually, where the parties have agreed to a private FDR, the order made at the first appointment will record such an agreement in the recital, and will provide for a short directions hearing shortly after the date of the private FDR. The directions hearing can be vacated if agreed minutes are submitted following a successful FDR. If it has been unsuccessful then directions for the final hearing can be given. An alternative is for the case to be adjourned generally while the private FDR takes place.’
As a rider to the comments by Sir James, it should be noted that a private FDR can take place at any time during the court process or even, if the parties agree, before an application is issued. There will usually be little difficulty obtaining from the court, an (often temporary) adjournment of the court process to enable the private FDR to be held.
It is, however, important that the parties have made full, or at least adequate, disclosure of their respective financial positions before the private FDR is held, to avoid any later arguments about the financial information upon which a settlement was achieved.
Who will conduct a private FDR and where?
Private FDR’s are invariably conducted by practising or retired legal practitioners or retired judges, using the knowledge and expertise gained in this discrete area of family law.
There are groups of retired judges and practising and retired legal professionals (both barristers and solicitors) who have established polished systems and facilities for dealing with private FDR’s.
The advantages of a private FDR
The advantages of the private FDR system, now formally endorsed by the President of the Family Division, as indicated above, as an alternative to at least part of the exclusively court based process, are seen to be many.
Busy family practitioners are more aware than most of the problems associated with the court FDR lists which include:
. Delays in cases reaching court are inimical to the maintenance of the momentum of
negotiations between the parties.
. Even when a date has been obtained, cases are regularly over listed so that is
frequently the case that there is insufficient time for the judge both to prepare
adequately for all the FDR’s in the list or to give each case the time that is needed to
explore in depth the possibilities of a settlement.
. Cases often overrun and parties cannot guarantee that their case will start on time
with the result that there are unacceptable waiting times
. Facilities in courts are far too often found to be unsatisfactory, insufficient and not
conducive to calm and effective negotiations.
. Cases are sometimes listed before judges with insufficient experience or the
expertise required for a particular case.
In contrast, if parties elect to hold a private FDR:
. Whilst the structure of the private FDR bears a resemblance to a hearing in court,
the atmosphere is less formal and intimidating for the parties.
. There are no other cases or parties and the surroundings are quiet and conducive to
calm discussion and negotiation.
. With the help of their lawyers, the parties can select the identity of the private FDR
judge thought to be suitable for the case from amongst those professionals offering
. There is less, often much less, delay in fixing an appointment for a private FDR than
waiting for a court date so that continued uncertainty for parties is reduced.
. The judge conducting the private FDR will have time to read the papers and prepare
for the hearing.
. The judge will have no other cases to hear on the day fixed for the private FDR and
can give sole attention to the private FDR.
. There will be adequate time for privater discussion by the parties with their lawyers
and negotiations with the other party
. The parties can continue to have the support of their legal advisors who can
accompany them to the private FDR.
. Whilst the judge at the private FDR cannot make a formal court order, the parties
can sign an agreement setting out the terms of any agreement reached which can
later be converted into a court order approved by the court usually without the need
for the parties to attend court.
. The parties have the advantage of hearing the views of an independent professional
experienced in cases of this sort and will be given reasonable time to consider
whether or not an agreement can be achieved.
. The private FDR will be conducted on the basis that what is said is confidential to
that meeting, so that if agreement is not achieved, neither party can take advantage
of anything said at the private FDR. This means that the parties can speak freely
and openly without fear of prejudicing their legal position.
. Research has shown that cases which are resolved by agreement between parties
rather than being imposed upon them by the court, have a far higher prospect of
. If the private FDR does not result in an agreement to settle the case, the parties are
still able to continue the proceedings in court.
There are some who say that the system of private FDR’s is a “privatisation” of the justice system, akin, for example, to private medicine or education. The reality is that the engagement of an independent expert to express a view on a case is no more than many parties seek already, for example, in attending mediation or taking a (sometimes second) professional opinion on the whole or part of their case.
Others refer to the cost as being a disincentive to attempts to settle in this way. Again, in cases which are conducted before the courts, more often than not, when parties are legally represented, there will be regularly be discussions and negotiations between the lawyers who seek to achieve a fair settlement. Such actions by the lawyers will not take place without cost to the clients. If a case is referred to a private FDR and a settlement is achieved, then the continuing costs of the court case is avoided.
The Financial Resolution Consultancy, which is part of Magdalen Chambers, offers a full and confidential private FDR service by retired judges and practitioners who have judicial experience.
For further information and a confidential preliminary discussion please contact chambers.
01392 208484 firstname.lastname@example.org
CHARLES COOPER REVIEWS THE CONSEQUENCES FOR NIL-RATE BAND LEGACIES OF THE NEW RESIDENCE NIL-RATE BAND FOR INHERITANCE TAX
Since 09 October 2007 it has been possible to claim, on their death, the unused Inheritance Tax Nil-Rate Band (‘NRB’) of their spouse or civil partner who died before them. This is often referred to as the ‘Transferable Nil-Rate Band’ or ‘TNRB’. By 2014, the Court of Appeal had been asked to consider whether the wording of a so-called ‘Nil-Rate Band Legacy’ should properly include the TNRB as well. The case was Loring v Woodland Trust  EWCA Civ 1314.
In that case, the relevant part of the NRB legacy read:
‘MY TRUSTEES shall set aside out of my residuary estate assets or cash of an aggregate value equal to such sum as is at the date of my death the amount of my unused nil-rate band for inheritance tax and to hold the same for such of the following…’
The Court of Appeal upheld the first instance decision that the legacy should be calculated so as to include both the unused NRB and the TNRB, even though the legislation had been introduced after execution of the will. Particular reference was made to the wording of s.8A Inheritance Tax Act 1984 as applying to increase the NRB rather than being a separate, additional, NRB.
HMRC has criticised the decision in Loring, in their Inheritance Tax Manual at IHTM43065, on the basis that the clause uses the specific words ‘the amount of my unused nil-rate band’.
From 06 April 2017, however, there is now an additional ‘Residence Nil-Rate Band’ and a ‘Transferable Residence Nil-Rate Band’ to contend with, the legislation for which is set out at ss.8D-8M Inheritance Tax Act 1984. Now, more than ever, caution is advised when drafting or interpreting NRB legacies within a will.
[Charles practised as a Solicitor and Higher Court Advocate before being called to the Bar, and specialises in tax, trusts, wills and probate.]
In what is likely to be the leading authority on employment status for years to come, the Supreme Court today has dismissed the appeal of Pimlico Plumbers from the Court of Appeal decision that Mr Smith was a worker and not a self-employed contractor.
Mr Smith is a plumber who carried out work for Pimlico between 2005 and 2011. After suffering a heart attack in 2011, Mr Smith claimed to have been unfairly dismissed despite having presented himself as self-employed for VAT and income tax for 6 years. The facts of his engagement are complex, but the dispute between the parties centred around the legal categorisation of Pimlico’s business model. The model presented operatives to clients as working for the business, but at the same time the business internally sought to maintain that there was a legal relationship of self-employed independent contractor rather than employer and employee. The paperwork in this regard was confusing at best. The employment tribunal, EAT and Court of Appeal all reached the decision that Mr Smith was a ‘worker’ rather than a self-employed contractor. Today the Supreme Court judgment upheld that finding.
Whether or not someone is a worker or an employee is largely a matter of fact for the Tribunal to decide. Here Lord Wilson determined that, “the dominant feature of Mr Smith’s contracts with Pimlico was an obligation of personal performance …there were features of the contract which strongly militated against recognition of Pimlico as a client or customer of Mr Smith. Its tight control over him was reflected in its requirements that he should wear the branded Pimlico uniform; drive its branded van, to which Pimlico applied a tracker; carry its identity card; and closely follow the administrative instructions of its control room. The severe terms as to when and how much it was obliged to pay him, on which it relied, betrayed a grip on his economy inconsistent with his being a truly independent contractor.” The substantive claims will now proceed to be heard in the employment tribunal.
Although Charlie Mullins (the owner of Pimlico) prophesies that companies using self-employed contractors now face a ‘tsunami of claims’, this claim is most likely a gross exaggeration. As has always been the case, every individual case will require careful legal analysis of the true nature of the working relationship. The contractual label alone is not enough. The contract may term the relationship as one of self-employed contractor, but the substance of the obligation of personal performance is what counts. Here, there was criticism of “an irrelevant contract, cast in highly confusing terms”, necessitating proper scrutiny of the entire engagement. The famous judgment of Lord Templeman in Street v Mountford  AC 809 comes to mind that “The manufacture of a five pronged implement for manual digging results in a fork even if the manufacturer, unfamiliar with the English language, insists that he intended to make and has made a spade.”
Companies routinely engaging self-employed contractors on any sort of routine basis would do well to potentially scrutinise and revise its contracts in light of this judgment. Individuals who feel as though they have been ‘strong armed’ into signing a contract declaring them to be self-employed, despite being heavily controlled by their company, may wish to consider negotiating a clearer and more honest working legal relationship. When it comes to drafting contracts that seek to control an operative whilst describing them as self-employed, the ‘careful choreography’ exercised by Pimlico is not enough to balance such inconsistent objectives. In future, contracts- be they for an employee, worker or self-employed contractor- should really call a spade a spade.
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.
Inordinate amounts of time and money are spent – wasted – in the process of drafting orders that could, and therefore should, be standardised.